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(^■)~i^t.^  w     <,     ^»- 


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OF  THfc 


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HELU  AT 


v\N.  FR.WCISCO,  CALIFORNIA 


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b/*rT;.MuJ^H . 
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REPORT 


OF  THE 


FORTY-FIFTH  ANNUAL  MEETING 


OF  THE 


American  Bar  Association 


HELD  AT 


SAN,  FRANCISCO,  CALIFORNIA 


AUGUST  9,  lo  and  ii,  1922 


f        .     •      •  •       ' 


BALTIMORE: 
THE  LORD  BALTIMORE  PRESS 

1922 


29680 


2 


•  •• 


.    .i  : 


•  '•  ■     •  ,  •  • 


CONTENTS. 

PAQB 

Portrait  of  President Frontispiece 

Canons  of  Ethics 7 

Proceedings  of  American  Bar  Association : 

Ist  day,  Morning  Session 10 

Afternoon  Session   28 

Evening  Session  30 

2d  day,  Morning  Session 32 

Afternoon  Session 35 

Evening  Session  :  72 

3d  day,  Morning  Session 77 

Secretary's  Report   103 

Treasurer's  Report  106 

Report  of  the  Executive  Committee 110 

Members  and  Delegates  Registered  at  Meeting 114 

Annual  Dinner 128 

List  of  Presidents  129 

Secretaries 130 

Treasurers    130 

Executive   Committee 131 

Places  of  Meeting  and  Attendance 133 

Constitution    134 

By-Laws  140 

Officers  of  Association,  Sections,  etc 146 

General  Council  148 

Vice-Presidents  and  Members  of  Local  Councils 149 

Standing  Committees   156 

Special  Committees  159 

Address  of  President  Severance 163 

Address  of  Lucien  Shaw   .' 189 

Addreffl  of  F.  Dumont  Smith 208 

Address  of  Lord  Shaw  219 

Address  of  M.  Henry  Aubepin 244 

Address  of  William  Howard  Taf t 250 

Address  of  Calvin  Coolidge  270 

Address  of  Nicholas  Murray  Butler 278 

Committee  Reports: 

Professional  Ethics  and  Grievances 285 

Commerce,  Trade  and  Commercial  Law 288 

International  Law 323 

Lisurance  Law  353 

Jurisprudence  and  Law  Reform 356 

Admiralty  and  Maritime  Law 367 

Uniform  Judicial  Procedure  370 

Membership    389 

Classification  and  Restatement  of  the  Law 391 

Publicity    394 

Memorials   395 

Legal  Aid  Work 402 

Law  of  Aeronautics  413 

American  Citizenship 416 

(3) 


4  CONTENTS. 

Committee  Reports — Continued  page 

Law  Enforcement  424 

Internal  Revenue  Law  and  Its  Means  of  Collection 433 

Finance  436 

List  of  State  Bar  Associations 437 

Some  of  the  Larger  Local  Bar  Associations 439 

Memorandum  of  Subjects  Referred  to  Committees 441 

List  of  Addresses  and  Papers  Read 442 

Proceedings  of  the  Comparative  Law  Bureau  451 

Proceedings  of  the  Judicial  Section  457 

Address  of  Curtis  D.  Wilbur  450 

Address  of  N.  P.  Conrey 472 

List  of  Judges  Registered 480 

Conference  of  Bar  Association  Delegates: 

Proceedings  of  the  Special  Conference  on  Legal  Education....  482 

Proceedings  of  Seventh  Annual  Conference 502 

RepresentativeB  of  Bar  Associations  Registered 600 

Proceedings  of  the  Section  of  Patent,  Trade-Mark  and  Copyright 

Law   605 

Proceedings  of  the  Section  of  Criminal  Law 607 

Address  of  A.  M.  Kidd 614 

Address  of  John  A-  Larsen  619 

Address  of  Herman  M.  Adler  629 

Proceedings  of  the  Section  of  Public  Utility  Law 634 

Address  of  Nathaniel  T.  Guernsey 637 

Address  of  Edwin   0.   Edgerton 652 

Address  of  Hugh  Gordon 661 

Address  of  Franklin  T.  Griffith 675 

Proceedings  of  Section  of  Legal  Education  and  Admissions  to  the 

Bar    689 

Commissioners  on  Uniform  State  Laws: 

Origin,  Nature  and  Scope 691 

Officers  of  the  Conference 695 

Standing  and  Special  Committees 695 

List  of  Commissioners 700 

Proceedings  of  Conference  705 

Address  of  President — Henry  Stockbridge 717 

Honorary  Members  722 

Alphabetical  List  of  Members  723 

State  List  of  Members  by  Cities,  Towns  and  Counties 882 

Recapitidation    1014 

Notice  as  to  Reports 1015 

Index  1017 


AMEBICAN  BAR  ASSOCIATION. 

(Organized  at  Saratoga  Springs,  New  York,  Augtut  SI,  1878,) 

"  Its  object  shall  be  to  advance  the  science  of  jurisprudence, 
promote  the  administration  of  justice  and  unifonnity  of  legisla- 
tion and  of  judicial  decision  throughout  the  nation,  uphold  the 
honor  of  the  profession  of  the  law,  and  encourage  cordial  inter- 
course among  the  members  of  the  American  Bar/'  (Constitu- 
tion, Article  I.) 


(6) 


"There  is  certainly,  without  any  exception,  no  profession  in  which 
so  many  temptations  beset  the  path  to  swerve  from  the  line  of  strict 
integrity,  in  which  so  many  delicate  and  difficult  questions  of  duty 
are  continually  arising.  Tliere  are  pitfalls  and  mantraps  at  every 
step,  and  the  mere  youth,  at  the  very  outset  of  his  career,  needs  often 
the  prudence  and  self-denial  as  well  as  the  moral  courage,  which 
belong  commonly  to  riper  years.  High  moral  principle  is  the  only 
safe  guide,  the  only  torch  to  light  his  way  amidst  darkness  and 
obstruction."— GEORGE  SHARSWOOD. 

"Craft  is  the  vice,  not  the  spirit,  of  the  profession.  Trick  is  pro- 
fessional prostitution.  Falsehood,  is  professional  apostasy.  The 
strength  of  a  lawyer  is  in  thorough  knowledge  of  legal  truth,  in 
thorough  devotion  to  legal  right.  Truth  and  integrity  can  do  more  in 
the  profession  than  the  subtlest  and  wiliest  devices.  The  power  of 
integrity  is  the  rule;  the  power  of  fraud  is  the  exception.  Emulation 
and  zeal  lead  lawyers  astray;  but  the  general  law  of  the  profession  is 
duty,  not  success.  In  it,  as  elsewhere,  in  human  life,  the  judgment  of 
success  is  but  the  verdict  of  little  minds.  Professional  duty,  faith- 
fully and  well  performed,  is  the  lawyer's  glory.  This  is  equally  true 
of  the  Bench  and  of  the  Bar."— EDWARD  G.  RYAN. 

"Discourage  litigation.  Persuade  your  neighbors  to  compromise 
whenever  you  can.  Point  out  to  them  how  the  nominal  winner  is 
often  a  real  loser — in  fees,  expenses  and  waste  of  time.  As  a  peace- 
maker, the  lawyer  has  a  superior  opportunity  of  being  a  good  man. 
Never  stir  up  litigation.  A  worse  man  can  scarcely  be  found  than 
one  who  does  this.  Who  can  be  more  nearly  a  fiend  than  he  who 
habitually  overhauls  the  register  of  deeds  in  search  of  defects  in  titles 
whereupon  to  stir  up  strife  and  put  money  in  his  pocket?  A  moral 
tone  ought  to  be  enforced  in  the  profession  which  would  drive  such 
men  out  of  it."— ABRAHAM  LINCOLN. 


(6) 


CANONS  OF  ETHICS. 

I        '  •*  - 

Pbsa3i:bl& 

*»  w 

O      * 

In  America^  where  the  stability  of  courts  aad  of  all  depart- 
ments of  gOYernment  rests  upon  the  approval  of  the  people,  it 
is  peculiarly  essential  that  the  system  for  establishing  an$  dis- 
pensing justice  be  developed  to  a  high  point  of  efficiency  and 
so  maintained  that  the  public  shall  have  absolute  confidence  i4 
the  integrity  and  impartiality  of  its  administration*  The  future 
of  the  republic,  to  a  great  extent,  depends  upon  our  maintenance 
of  justice  pure  aad  unsullied.  It  cannot  be  so  maintained  unless 
the  conduct  and  the  motives  of  the  members  of  our  profession 
are  such  bs  to  merit  the  approval  of  all  just  men. 

II. 

Thb  Canon  op  Ethics.* 

Ko  code  or  set  of  rules  can  be  framed  which  will  particularize 
all  the  duties  of  the  lawyer  in  the  varying  phases  of  litigation  or 
in  all  the  relations  of  professional  life.  The  following  canons 
of  ethics  are  adopted  by  the  Americaa  Bar  Association  as  a 
general  guide,  yet  the-  enumeration  of  particular  duties  should 
not  be  construed  as  a  denial  of  the  existence  of  others  equally 
imperative,  though  not  specifically  mentioned : 

1.  The  Duty  of  the  Lawyer  to  the  Courts. — It  is  the  duty  of  the 
lawyer  to  maintain  toward  the  Courts  a  respectful  attitude,  not  for 
the  sake  of  the  temporary  incumbent  of  the  judicial  office,  but  for 
the  maintenance  of  its  supreme  importance.  Judges,  not  being  wholly 
free  to  defend  themselves,  are  peculiarly  entitled. to  receive  the  support 
of  the  Bar  against  imjust  criticism  and  clamor.  Whenever  there  is 
proper  ground  for  serious  complaint  of  a  judicial  officer,  it  is  the  right 
and  duty  of  the  lawyer  to  submit  his  grievances  to  the  proper  authori- 
ties. In  such  cases,  but  not  otherwise,  such  charges  should  be  encour- 
aged and  the  person  making  them  should  be  protected. 

2.  The  Selection  of  Judges. — ^It  is  the  duty  of  the  Bar  to  endeavor 
to  prevent  political  considerations  from  outweighing  judicial  fitness 
in  the  selection  of  Judges.    It  should  protest  earnestly  and  actively 


*  For  index  and  Synopsis  of  Canons,  see  p.  17. 

(7) 


8  AHEBIOAK  BAB  ASSOCIATION. 

•     .    • 

against  the  appointment  or*  election  of  those  who  are  unsuitable  for 
the  Bench ;  and  it  should  .strive  to  have  elevated  thereto  only  those 
willing  to  forego  otb^.  ^ffi^lojrments,  whether  of  a  business,  political 
or  other  character^*  w^ch  may  embarrass  their  free  and  fair  considera- 
tion of  questioi^ -before  them  for  decision.  The  aspiration  of  lawyers 
for  judicial  p<3^ik)n  should  be  governed  by  an  impartial  estimate  of 
their  ability  to.  add  honor  to  the  office  and  not  by  a  desire  for  the  dis- 
tinction  the  position  may  bring  to  themselves. 

3.  iytteaipts  to  Exert  Personal  Influenee  on  the  Court.— -Marked 

attention  and  unusual  hospitality  on  the  part  of  a  lawyer  to  a  Judge, 

.  .uncalled  for  by  the  personal  relations  of  the  parties,  subjected  both  the 

Jddge  and  the  lawyer  to  misconstructions  of  motive  and  should  be 

\  Avoided.    A  lawyer  should  not  communicate  or  argue  privately  with 

'   the  Judge  as  to  the  merits  of  a  pending  cause,  and  he  deserves  rebuke 

and  denunciation  for  any  device  or  attempt  to  gain  from  a  Judge  special 

personal  consideration  or  favor.     A  self-respecting   independence  in 

the  discharge  of  professional  duty,  without  denial  or  diminution  of 

the  courtesy  and  respect  due  the  Judge's  station,  is  the  only  proper 

foundation  for  cordial  personal  and  official  relations  between  Bench  and 

Bar. 

4.  When  Counsel  for  an  Indigent  Prisoner. — ^A  lawyer  assigned 
as  counsel  for  an  indigent  prisoner  ought  not  to  ask  to  be  excused 
for  any  trivial  reason,  and  should  always  exert  his  best  efforts  in  his 
behalf. 

5.  The  Defense  or  Prosecution  of  Those  Aecused  of  Crime.— It 
is  the  right  of  the  lawyer  to  undertake  the  defense  of  a  person  accused 
of  crime,  regardless  of  his  personal  opinion  as  to  the  guilt  of  the 
accused;  otherwise  innocent  persons,  victims  only  of  suspicious  cir- 
cimistances,  might  be  denied  proper  defense.  Having  undertaken  such 
defense,  the  lawyer  is  bound  by  all  fair  and  honorable  means,  to  pre- 
sent every  defense  that  the  law  of  the  land  permits,  to  the  end  that  no 
person  may  be  deprived  of  life  or  liberty,  but  by  due  process  of  law. 

The  primary  duty  of  a  lawyer  engaged  in  public  prosecution  is  not 
to  convict,  but  to  see  that  justice  is  done.  The  suppression  of  facts  or 
the  secreting  of  witnesses  capable  of  establishing  the  innocence  of  the 
accused  is  highly  reprehensible. 

6.  Adverse  Influences  and  Conflicting  Interests. — It  is  the  duty  of 
a  lawyer  at  the  time  of  retainer  to  disclose  to  the  client  all  the  circum- 
stances of  his  relations  to  the  parties,  and  any  interest  in  or  connection 
with  the  controversy,  which  might  influence  the  client  in  the  selection 
of  counsel. 

It  is  unprofessional  to  'represent  conflicting  interests,  except  by  ex- 
press consent  of  all  concerned  given  after  a  full  disclosure  of  the  facts. 
Within  the  meaning  of  this  canon,  a  lawyer  represents  conflicting  inter- 
ests when,  in  behalf  of  one  client,  it  is  his  duty  to  contend  for  that  which 
duty  to  another  client  requires  him  to  oppose. 


0AN0N8  OV  BTHIOS.  9 

The  obligation  to  represent  the  dient  with  undivided  fidelity  and 
not  to  divulge  his  secrets  or  confidences  forbids  also  the  subsequent 
acceptance  of  retainers  or  employment  from  others  in  matters  ad* 
versely  affecting  any  interests  of  the  client  with  respect  to  which 
confidence  has  been  reported. 

7.  Professional  Colleagves  and  Conflicts  of  Opinion.— -A  client's 
proffer  of  assistance  of  additional  coimsel  should  not  be  regarded 
as  evidence  of  want  of  confidence,  but  the  matter  should  be  left  to 
the  determination  of  the  client.  A  lawyer  should  decline  associa- 
tion as  colleague  if  it  is  objectionable  to  the  original  counsel,  but 
if  the  lawyer  first  retained  is  relieved,  another  may  come  into  the 
case. 

When  lawyers  jointly  associated  in  a  cause  cannot  agree  as  to  any 
matter  vital  to  the  interest  of  the  client,  the  conflict  of  opinion  should 
be  frankly  stated  to  him  for  his  final  determination.  His  decision 
should  be  accepted  unless  the  nature  of  the  difference  makes  it  im- 
practicable for  the  lawyer  whose  judgment  has  been  overruled  to  co- 
operate effectively.  In  this  event  it  is  his  duty  to  ask  the  client  to 
relieve  him. 

Efforts,  direct  or  indirect,  in  any  way  to  encroach  upon  the  business 
of  another  lawyer,  are  unworthy  of  those  who  should  be  brethren  at 
the  Bar;  but  nevertheless,  it  is  the  right  of  any  lawyer,  without  fear 
or  favor,  to  give  proper  advice  to  those  seeking  relief  against  unfaithful 
or  neglectful  counsel,  generally  after  communication  with  the  lawyer 
of  whom  the  complaint  is  made. 

8.  Advising  upon  the  Merits  of  a  Client's  Cause. — A  lawyer  should 
endeavor  to  obtain  full  knowledge  of  his  client's  cause  before  advising 
thereon,  and  he  is  bound  to  give  a  candid  opinion  of  the  merits  and 
probable  result  of  pending  or  contemplated  litigation.  The  miscarri- 
ages to  which  justice  is  subject,  by  reason  of  surprises  and  disappoint- 
ments in  evidence  and  witnesses,  and  through  mistakes  of  juries  and 
errors  of  Courts,  even  though  only  occasional,  admonish  lawyers  to 
beware  of  bold  and  confident  assurances  to  clients,  especially  where  the 
employment  may  depend  upon  such  assurance.  Whenever  the  contro- 
versy will  admit  of  fair  adjustment,  the  client  should  be  advised  to 
avoid  or  to  end  the  litigation. 

9.  Negotiations  with  Opposite  Party.— A  lawyer  should  not  in  any 
way  communicate  upon  the  subject  of  controversy  with  a  party  repre- 
sented by  counsel;  much  less  should  he  undertake  to  negotiate  or 
compromise  the  matter  with  him,  but  should  deal  only  with  his  counsel. 
It  is  incumbent  upon  the  lawyer  most  particularly  to  avoid  everything 
that  may  tend  to  mislead  a  party  not  represented  by  coimsel,  and  he 
should  not  undertake  to  advise  him  as  to  the  law. 

10.  Acquiring  Interest  in  Litigation. — ^The  lawyer  should  not  pur- 
chase any  interest  in  the  subject  matter  of  the  litigation  which  he  is 
conducting. 


10  AMEBIOAN   BAB  ASSOCIATION. 

11.  Dealing  with  Tmst  Property. — Money  of  the  client  or  other 
trust  property  coming  into  the  posseBsion  of  the  lawyer  should  be  re- 
ported promptly,  and  except  with  the  client's  knowledge  and  consent 
should  not  be  commingled  with  his  private  property  or  be  used  by  him. 

12.  Fixing  the  Amount  of  the  Fee. — ^In  fixing  fees,  lawyers  should 
avoid  charges  which  overestimate  their  advice  and  services,  as  well 
as  those  which  undervalue  them.  A  client's  ability  to  pay  cannot  justify 
a  charge  in  excess  of  the  value  of  the  service,  though  his  poverty  may 
require  a  less  charge,  or  even  none  at  all.  The  reasonable  requests  of 
brother  lawyers,  and  of  their  widows  and  orphans  without  ample  means, 
should  receive  special  and  kindly  consideration. 

In  determining  the  amoimt  of  the  fee,  it  is  proper  to  consider:  (1) 
the  time  and  labor  required,  the  novelty  and  difficulty  of  the  questions 
involved  and  the  skill  requisite  properly  to  conduct  the  cause;  (2) 
whether  the  acceptance  of  emplo3rment  in  the  particular  case  will  pre- 
clude the  lawyer's  appearance  for  others  in  cases  likely  to  arise  out  of 
the  transaction,  and  in  which  there  is  a  reasonable  expectation  that 
otherwise  he  would  be  employed,  or  will  involve  the  loss  of  other  busi- 
ness while  employed  in  the  particular  case  or  antagonisms  with  other 
clients;  (3)  the  customary  charges  of  the  Bar  for  similar  services;  (4) 
the  amount  involved  in  the  controversy  and  the  benefits  resulting  to 
the  client  from  the  services;  (6)  the  contingency  or  the  certainty  of 
the  compensation;  and  (6)  the  character  of  the  emplosrment,  whether 
casual  or  for  an  established  and  constant  client.  No  one  of  these  con- 
siderations in  itself  is  controlling.  They  are  mere  guides  in  ascertaining 
the  real  value  of  the  service. 

In  fixing  fees  it  should  never  be  forgotten  that  the  profession  is  a 
branch  of  the  Etdmimstration  of  justice  and  not  a  mere  money-getting 
trade. 

13.  Contingent  Fees. — Contingent  fees,  where  sanctioned  by  law, 
should  be  under  the  supervision  of  the  Court,  in  order  that  clients  may 
be  protected  from  unjust  charges. 

14.  Suing  a  Client  for  a  Fee. — Controversies  with  clients  concern- 
ing compensation  are  to  be  avoided  by  the  lawyer  so  far  as  shall  be 
compatible  with  his  self-respect  and  with  his  right  to  receive  reasonable 
recompense  for  his  services ;  and  lawsuits  with  clients  should  be  resorted 
to  only  to  prevent  injustice,  imposition  or  fraud. 

15.  How  Far  a  Lawyer  May  Go  in  Supporting  a  Client's  Cause. — 
Nothing  operates  more  certainly  to  create  or  to  foster  popular  preju- 
dice against  lawyers  as  a  class,  and  to  deprive  the  profession  of  that 
full  measure  of  public  esteem  and  confidence  which  belongs  to  the 
proper  discharge  of  its  duties,  than  does  the  false  claim,  often  set  up  by 
the  unscrupulous  in  defense  of  questionable  transactions,  that  it  is  the 
duty  of  the  lawyer  to  do  whatever  may  enable  him  to  succeed  in  winning 
his  client's  cause. 

It  is  improper  for  a  lawyer  to  assert  in  argument  his  presonal  belief 
in  his  client's  innocence  or  in  the  justice  of  his  cause* 


0ANON8  07  BTHIOS.  11 


y 


The  lawyer  owes  "  entire  devotion  to  the  interest  of  the  client,  warm 
Beal  in  the  maintenance  and  defense  of  his  rights  and  the  exertion  of 
his  utmost  learning  and  ability/'  to  the  end  that  nothing  be  taken  or  be 
withheld  from  him,  save  by  the  rules  of  law,  legally  applied.  No  fear 
of  judicial  disfavor  or  public  unpopulari^  should  restrain  him  from 
the  full  discharge  of  his  duty.  In  the  judicial  forum  ihe  client  is  en- 
titled to  the  benefit  of  any  and  every  remedy  and  defense  that  is 
authorized  by  the  law  of  the  land,  and  he  may  expect  his  lawyer  to 
assert  every  such  remedy  or  defense.  But  it  is  steadfastly  to  be  borne 
in  mind  that  the  great  trust  of  the  lawyer  is  to  be  performed  within 
and  not  without  the  bounds  of  the  law.  The  office  of  attorney  does  not 
permit,  much  less  does  it  demand  of  him  for  any  client,  violation  of  law 
or  any  manner  of  fraud  or  chicane.  He  must  obey  his  own  conscience 
and  not  that  of  his  client. 

16.  R«str«iiiiiig  Cli«iit«  from  Improprieties.-— A  lawyer  should  use 
his  best  efforts  to  restrain  and  to  prevent  his  clients  from  doing  those 
things  which  the  lawyer  himself  ought  not  to  do,  particular^  with 
reference  to  their  conduct  towards  Courts,  judicial  officers,  jurors,  wit- 
nesses and  suitors.  If  a  client  persists  in  such  wrong-doing  the  lawyer 
should  terminate'  their  relation. 

17.  Ill-Feeling  and  Personalities  Between  Advocates.— -Clients, 
not  lawyers,  are  the  litigants.  Whatever  may  be  the  ill-feeling  existing 
between  clients,  it  should  not  be  allowed  to  influence  coimsel  in  their 
conduct  and  demeanor  toward  each  other  or  toward  suitors  in  the  case. 
All  personalities  between  counsel  should  be  scrupulously  avoided.  In 
the  trial  of  a  cause  it  is  indecent  to  allude  to  the  personal  history  or 
the  personal  peculiarities  and  idio89rncrasi£S  of  counsel  on  the  other 
side.  Personal  colloquies  between  counsel  which  cause  delay  and  pro- 
mote unseemly  wrangling  should  also  be  carefully  avoided. 

18.  Treatment  of  Witnesses  and  Litigants. — ^A  lawyer  should  al- 
ways treat  adverse  witnesses  and  suitors  with  fairness  and  due  con- 
sideration, and  he  should  never  minister  to  the  malevolence  or  preju- 
dices of  a  client  in  the  trial  or  conduct  of  a  cause.  The  client  cannot 
be  made  the  keeper  of  the  lawyer's  conscience  in  professional  matters. 
He  has  no  right  to  demand  that  hb  counsel  shall  abuse  the  opposite 
party  or  indulge  in  offensive  personalities.  Improper  speech  is  not 
excusable  on  the  groimd  that  it  is  what  the  client  would  say  if  speaking 
in  his  own  behalf. 

19.  Appearance  of  Lawyer  as  Witness  for  His  Client. — ^When  a 
lawyer  is  witness  for  his  client,  except  as  to  merely  formal  matters,  such 
as  the  attestation  or  custody  of  an  instrument  and  the  like,  he  should 
leave  the  trial  of  the  case  to  other  counsel.  Except  when  essential  to 
the  ends  of  justice,  a  lawyer  should  avoid  testifying  in  Court  in  behalf 
of  his  client. 

20.  Newspaper  Discussion  of  Pending  Litigation.— Newspaper 
publications  by  a  lawyer  as  to  pending  or  fiQticipated  litigation  ma^ 


IZ  AMEBICAN  BAB  ASSOCIATION. 

interfere  with  a  fair  trial  in  the  Courts  and  otherwise  prejudice  the  due 
administration  of  justice  Generally  th^  are  to  be  condemned.  If  the 
extreme  circumstances  of  a  particular  case  justify  a  statement  to  the 
public,  it  is  improfessional  to  make  it  anon3rmously.  An  ex  parte 
reference  to  the  facts  should  not  go  beyond  quotation  from  the  records 
and  papers  on  file  in  the  Court;  but  even  in  extreme  cases  it  is  better 
to  avoid  any  ex  parte  statement. 

21.  Punetuality  and  Expedition. — It  is  the  duty  of  the  lawyer  not 
only  to  his  client,  but  also  to  the  courts  and  to  the  public,  to  be  punctual 
in  attendance,  and  to  be  concise  and  direct  in  the  trial  and  disposition 
of  causes. 

22.  Candor  and  Fairness. — ^The  conduct  of  the  lawyer  before  the 
Court  and  with  other  lawyers  should  be  characterized  by  candor  and 
faimeas. 

It  is  not  candid  or  fair  for  the  lawyer  knowingly  to  misquote  the 
contents  of  a  paper,  the  testimony  of  a  witness,  the  language  or  the 
argument  of  opposing  counsel,  or  the  language  of  a  decision  or  a  text- 
book ;  or  with  knowledge  of  its  invalidity,  to  cite  as  authority  a  decision 
that  has  been  overruled,  or  a  statute  that  has  been  repealed ;  or  in  argu- 
ment to  assert  as  a  fact  that  which  has  not  been  proved,  or  in  those 
jurisdictions  where  a  side  has  the  opening  and  closing  arguments  to 
mislead  his  opponent  by  conceaHng  or  withholding  positions  in  his 
opening  argument  upon  which  his  side  then  intends  to  rely. 

It  is  unprofessional  and  dishonorable  to  deal  other  than  candidly  with 
the  facts  in  taking  the  statements  of  witnesses,  in  drawing  affidavits 
and  other  documents,  and  in  the  presentation  of  causes. 

A  lawyer  should  not  offer  evidence,  whith  he  knows  the  Court  should 
reject,  in  order  to  get  the  same  before  the  jury  by  argument  for  its 
admissibility,  nor  should  he  address  to  the  Judge  arguments  upon  any 
point  not  properly  calling  for  determination  by  him.  Neither  should 
he  introduce  into  an  argiimctit,  addressed  to  the  Court,  remarks  or 
statements  intended  to  influence  the  jury  or  bystanders. 

These  and  all  kindred  practices  are  unprofessional  and  unworthy  of  an 
officer  of  the  law  charged,  as  is  the  lawyer,  ^ith  the  duty  of  aiding  in  the 
administration  of  justice. 

23.  Attitude  Toward  Jury. — All  attempts  to  curry  favor  with  juries 
by  fawning,  flattery  or  pretended  solicitude  for  their  personal  comfort 
are  unprofessional.  Suggestions  of  counsel,  looking  to  the  comfort  or 
convenience  of  jurors,  and  propositions  to  dispense  with  argument, 
should  be  made  to  the  Court  out  of  the  jury's  hearing.  A  lawyer  must 
never  converse  privately  with  jurors  about  the  case;  and  both  before 
and  during  the  trial  he  should  avoid  communicating  with  them,  even  as 
to  matters  foreign  to  the  cause. 

24.  Right  of  Lawyer  to  Control  the  Incidents  of  the  Trial. — ^As  to 
incidental  matters  pending  the  trial,  not  affeeting  the  merits  of  the 
cause,  or  working  substantial  prejudice  to  tbo  rights  of  the  client, 


0ANON8  07  BTHIOS.  13 

sach.  as  forcing  the  opposite  lawyer  to  trial  when  he  is  under  affliotion 
or  bereavement;  forcing  the  trial  on  a  particular  day  to  the  injury  of 
the  opposite  lawyer  when  no  harm  will  result  from  a  trial  at  a  different 
time;  agreeing  to  an  extension  of  time  for  signing  a  bill  of  exceptions, 
erosB  interrogatories  and  the  like,  the  lawyer  must  be  allowed  to  judge. 
In  such  matters  no  client  has  a  right  to  demand  that  his  counsel  shall  be 
illiberal,  or  that  he  do  anything  therein  repugnant  to  his  own  sense  of 
honor  and  property. 

25.  Taking  Technical  Advantage  of  Opposite  Coansoli  Agree* 
ments  with  Him. — ^A  lawyer  should  not  ignore  known  customs  or 
practice  of  the  Bar  or  of  a  particular  Court,  even  when  the  law  permits, 
without  giving  timely  notice  of  the  opposing  counsel.  As  far  as  pos- 
sible, important  agreanents,  affecting  the  rights  of  dients,  ^ould  be 
reduced  to  writing;  but  it  is  dishonorable  to  avoid  performance  of  an 
agreement  fairly  made  because  it  is  not  reduced  to  writing,  as  required 
by  rules  of  Court. 

26.  Professional  Advocacy  Other  Than  Before  Courts. — ^A  lawyer 
openly,  and  in  his  true  character  may  render  professional  services 
before  legislative  or  other  bodies,  regarding  proposed  legislation  and 
in  advocacy  of  claims  before  departments  of  government,  upon  the 
same  principles  of  ethics  which  justify  his  appearance  before  the  Courts; 
but  it  is  improfessional  for  a  lawyer  so  engaged  to  conceal  his  attorney- 
ship, or  to  employ  secret  personal  soficitations,  or  to  use  means  other 
than  those  addressed  to  the  reason  and  understanding  to  influence  action. 

27.  Advertising,  Direct  or  Indirect.— The  most  worthy  and  effec- 
tive advertisement  possible,  ev&i  for  a  young  lawyer,  and  especially  with 

*his  brother  lawyers,  is  the  establishment  of  a  well-merited  reputation 
for  professional  capacity  and  fidelity  to  trust.  This  cannot  be  forced, 
but  must  be  the  outcome  of  character  and  conduct.  The  publication 
or  circulation  of  ordinary  simple  business  cards,  being  a  mi^ttrr  of 
personal  taste  or  local  custom,  and  sometimes  of  coiArenience,  is  not 
per  86  improper.  But  solicitation  of  business  by  circulars  or  advertise- 
ments, or  by  personal  communications  or  interviews,  not  warranted  by 
personal  relations,  is  improfesaional.  It  is  equally  unprofessional  to 
procure  business  by  indirection  through  touters  of  any  kind,  whether 
aUied  real  estate  firms  or  trust  companies  advertising  to  secure  the 
drawing  of  deeds  or  wills  or  offering  retainers  in  exchange  for  executor- 
ships or  trusteeships  to  be  influenced  by  the  lawyer.  Indirect  advertise- 
ment for  business  by  furnishing  or  inspiring  newspaper  comments 
concerning  causes  in  which  the  lawyer  has  been  or  is  engaged,  or  con- 
cerning the  manner  of  their  conduct,  the  magnitude  of  the  interests 
involved,  the  importance  of  the  lawyer's  positions,  and  all  other  like 
self-laudation,  defy  the  traditions  and  lower  the  tone  of  oiur  high  calling, 
and  are  intolerable. 


14  AMEBIOAK  BAB  AS800IATI0N. 

28.  Stirring  vp  LitigatioBt  Directly  or  Tkrougk  Ageiits.^It  IB 
unprof esaional  for  a  lawyer  to  volunteer  advice  to  bring  a  lawsuit,  except 
in  rare  cases  where  ties  of  blood,  relationship  or  trust  make  it  his  duty 
to  do  so.  Stirring  up  strife  and  litigation  is  not  only  unprofessional,  but 
it  is  indictable  at  common  law.  It  is  disreputable  to  hunt  up  defects  in 
titles  or  other  causes  of  action  and  inform  thereof  in  order  to  be  em- 
ployed to  bring  suit,  or  to  breed  litigation  by  seeking  out  those  with 
claims  for  personal  injuries  or  those  having  any  other  grounds  of  action 
in  order  to  secure  them  as  clients,  or  to  employ  agents  or  runners  for 
like  purposes,  or  to  pay  or  reward  directly  or  indirectly,  those  who  bring 
or  influence  the  bringing  of  such  cases  to  his  office,  or  to  remunerate 
policemen,  court  or  prison  officials,  physicians,  hospital  attacJUs  or 
others  who  may  succeed,  under  the  guise  of  giving  disinterested  friendly 
advice,  in  influencing  the  criminal,  the  sick  and  the  injured,  the  igno- 
rant or  others,  to  seek  his  professional  services.  A  duty  to  the  public 
and  to  the  profession  devolves  upon  every  member  of  the  Bar,  having 
knowledge  of  such  practices  upon  the  part  of  any  practitioner,  im- 
mediately to  inform  thereof  to  the  end  that  the  offender  may  be 
disbarred. 

29.  Upholding  the  Honor  of  the  Profession. — ^Lawyers  should  ex- 
pose without  fear  or  favor  before  the  proper  tribunals  corrupt  or  di»- 
honest  conduct  in  the  profession,  and  should  accept  without  hesitation 
employment  against  a  member  of  the  Bar  who  has  wronged  his  client. 
The  counsel  upon  the  trial  of  a  cause  in  which  perjiury  has  been  com- 
mitted owe  it  to  the  profession  and  to  the  public  to  bring  the  matter 
to  the  knowledge  of  the  prosecuting  authorities.  The  lawyer  should 
aid  in  guarding  the  Bar  against  the  admission  to  the  profession  of  candi- 
dates unfit  or  unqualified  because  deficient  in  either  moral  character 
or  education.  He  should  strive  at  all  times  to  uphold  the  honor  and 
to  maintain  the  dignity  of  the  profession  and  to  improve  not  only  the 
law  but  the  administration  of  justice. 

30.  Justifiable  and  Unjustifiable  Litigations. — ^The  lawyer  must 
dechne  to  conduct  a  civil  cause  or  to  make  a  defense  when  convinced 
that  it  is  intended  merely  to  harass  or  to  injure  the  opposite  party  or 
to  work  oppression  or  wrong.  But  otherwise  it  is  his  right,  and,  having 
accepted  retainer,  it  becomes  his  duty  to  insist  upon  the  judgment  of 
the  Court  as  to  the  legal  merits  of  his  client's  claim.  His  appearance  in 
Court  should  be  deemed  equivalent  to  an  assertion  on  his  honor  that  in 
his  opinion  his  client's  case  is  one  proper  for  judicial  determination. 

31.  Responsibility  for  Litigation. — ^No  lawyer  is  obliged  to  act 
dther  as  adviser  or  advocate  for  every  person  who  may  wish  to  become 
his  client.  He  has  the  right  to  decline  employment.  Every  lawyer 
upon  his  own  responsibility  must  decide  what  business  he  will  accept 
as  counsel,  what  causes  he  will  bring  into  Court  for  plaintiffs,  what 


GAK0N8  09  STHIC6.  16 

eajses  he  will  contest  in  Court  for  defendants.  The  responaibility  for 
advising  questionable  transactions,  for  bringing  questionable  suits,  for 
urging  questionable  defenses,  is  the  lawyer's  responsibility.  He  cannot 
escape  it  by  urging  as  an  excuse  that  he  is  only  following  his  client's 
instructions. 

32.  The  Law3r«r's  Dat^  in  Its  Last  Analysis. — No  client,  corporate 
or  individual,  however  powerful,  nor  any  cause,  civil  or  political,  however 
important,  is  entitled  to  receive,  nor  should  any  lawyer  render  any 
service  or  advice  involving  disloyalty  to  the  law  whose  ministers  we  are, 
or  disrespect  of  the  judicial  office,  which  we  are  bound  to  uphold,  or 
corruption  of  any  person  or  persons  exercising  a  public  office  or  private 
trust,  or  deception  or  betrayal  of  the  public.  When  rendering  any  such 
improper  service  or  advice,  the  lawyer  invites  and  merits  stem  and  just 
condemnation.  Correspondingly,  he  advances  the  honor  of  his  profes- 
sion and  the  best  interests  of  his  client  when  he  renders  service  or 
gives  advice  tending  to  impress  upon  the  client  and  lus  undertaking 
exact  compliance  with  the  strictest  principles  of  moral  law.  He  must 
also  observe  and  advise  his  client  to  observe  the  statute  law,  though 
until  a  statute  shall  have  been  construed  and  interpreted  by  compe- 
tent adjudication,  he  is  free  and  is  entitled  to  advise  as  to  its  validity 
and  as  to  what  he  conscientiously  believes  to  be  its  just  meaning 
and  extent.  But  above  all  a  lawyer  will  find  his  highest  honor  in 
a  deserved  reputation  for  fidelity  to  private  trust  and  to  public  duty, 
as  an  honest  mah  and  as  a  patriotic  and  loyal  citizen. 

III. 

Oath  of  Admission. 

The  general  principles  which  should  ever  control  the  lawyer 
in  the  practice  of  his  profession  are  clearly  set  forth  in  the  fol- 
lowing Oath  of  Admission  to  the  Bar,  formulated  upon  that  in 
nse  in  the  State  of  Washington,  and  which  conforms  in  its  main 
outlines  to  the  " duties''  of  lawyers  as  defined  by  statutory 
enactments  in  that  and  many  other  states  of  the  union  * — duties 

*  Alabama,  Cahfomia,  Georgia,  Idaho,  Indiana,  Iowa,  Mirmesota, 
Mississippi,  Nebraska,  North  Dakota,  Oklahoma,  Oregon,  South  Dakota, 
Utah,  Washington  and  Wisconsin.  The  oaths  administered  on  admis- 
sion to  the  Bar  in  all  the  other  States  require  the  observance  of  the 
highest  moral  principle  in  the  practice  of  the  profession,  but  the  duties 
of  the  lawyer  are  not  as  specifically  defined  by  law  as  in  the  States 
named. 


16  AKEBJOAK  BAB  ASSOCIATION. 

which  they  are  sworn  on  admission  to  obey  and  for  the  wilful 
violation  of  which  disbarment  is  provided : 

/  DO  SOLEMNLY  SWEAR: 

I  vnU  support  the  Constitution  of  the  United  States  and  the  Consti- 
tution of  the  State  of .* ; 

/  wiU  tnaintam  the  respect  due  to  Courts  of  Justice  and  judicial 
officers; 

I  ufill  not  counsel  or  maintain  any  suit  or  proceeding  which  shall  ap- 
pear to  me  to  be  unjust,  nor  any  defense  except  such  as  I  believe  to  be 
honestly  debatable  under  the  law  of  the  land; 

I  will  employ  for  the  purpose  of  maintaining  the  causes  confided  to 
me  siLch  means  only  as  are  consistent  with  truth  and  honor,  and  wHl 
never  seek  to  mislead  the  Judge  or  jury  by  any  artifice  or  false  state- 
ment of  fact  or  law; 

I  wHl  maintain  the  confidence  and  preserve  inviolate  the  secrets  of 
my  client,  and  will  accept  no  compensation  in  connection  with  his 
business  except  from  him  or  with  his  knowledge  and  approval; 

I  wiU  abstain  from  all  offensive  personality,  and  advance  no  fact  pre- 
judicial  to  the  honor  or  reputation  of  a  party  or  witness,  unless  required 
by  the  justice  of  the  cause  with  which  I. am  charged; 

I  will  never  reject  from  any  consideration  personal  to  myself  the  cause 
of  the  defenseless  or  oppressed,  or  delay  any  man's  cause  for  lucre  or 
malice.  SO  HELP  ME  OOD. 

We  commend  this  form  of  oath  for  adoption  by  the  proper 
authorities  in  all  the  states  and  territories. 

[NoTB.— The  foregoing  Canons  of  Professional  Ethics  were  adopted 
by  the  American  Bar  Association  at  its  thirty-first  annual  meeting  at 
Seattle,  Washington,  on  August  27,  1908. 

The  Canons  were  prepared  by  a  committee  composed  of 
Henry  St.  George  Tucker,  Virginia,  Chairman. 
Lucien  Hugh  Alexander,  Pennsylvania,  Secretary. 
David  J.  Brewer,  DiMrict  of  Columbia. 
Frederick  V.  Brown,  Minnesota. 
J.  M.  Dickinson,  Illinois. 
Franklin  Fernss,  Missouri. 
William  Wirt  Howe,  Louisiana. 
Thomas  H.  Hubbard,  New  York. 
James  G.  Jenkins,  Wisconsin. 
Thomas  Goode  Jones,  Alabama. 
Alton  B.  Parker,  New  York. 
George  R.  Peck,  Illinois. 
Francis  Ljrnde  Stetson,  New  York. 
Esra  R.  Thayer,  Massachusetts.] 


CANONS  OF  ETHICS.  "'     '  '^  17 

INDEX  AND  SYNOPSIS  OP  CANONS.       ^.    ;  | 

PREAMBLE,  pp.  ZA.  ^ 

THE  CANONS  OF  ETHICS,  pp.  4-13. 

1.  Thb  Duty  op  thb  Lawteb  to  the  Cottbts.    ((1,  2,  4;  iii,  iv,  vi.)* 

2.  Thb  Seudgtion  op  Judges.    (69.)* 

3.  Atiempts  to  Exebt  Pebsonal  Influence  on  the  Coubt.    (8, 

16.)* 

4.  When  Counsel  fob  an  Indigent  Pbiboneb.     (64;  xviii,  zzi, 

xxiii.)* 

5.  The  Defence  ob  Pbosbcution  of  Those  Accused  of  Cbime. 

(14;  XV.)* 

6.  Advebse  Influences  and  Conflicting  Intbbbsts.    (37,  28,  24, 

25;  viii.)* 

7.     FlIOFBSSIONAL   COLLEAGUES   AND   CONFLICTS  OF   OPINION.      (42,   49, 

60,  48;  vii,  xiv,  xvii.)* 

8.  Advising  upon  the  Mebits  of  a  Client's  Cause.    (38,  35;  xi, 

xix,  XX,  xxxi^  xxxii.    See  also  xxx.)* 

9.  Negotutions  with  Opposite  Pabtt.    (46,  47,  51 ;  xliii,  xliv.)* 

10.     AOQUIBING   InTEBEST  IN   LITIGATION,      (xxiv.)* 

11.  Dbaung  with  Tbusv  Pemh»ebtt.    (40;  xxv,  xxvi.)*    • 

12.  FixiNa  THE  Amount  of  the  Fee.    (54,  55,  56,  58;  xviii,  xxviii, 

xxxviii,  xlix.)* 

13.  Contingent  Fms.    (57;  xxiv.)* 

14.  Suing  a  Client  fob  a  FisE.    (53;  xxvii.    See  also  xxix.)* 

15.  How  fab  a  Lawteb  Mat  Go  in  Suppobtino  a  Client's  Cause. 

(11;  i,  X,  n^xii,  xiii,  xiv,  xl.)* 

16.  Restbaining  Clients  fbom  Impbopbdsties.     (44.)* 

17.  Ill  Fbeung  and  PfeBSONALmES  Between  Advocates.   (31^  32;  v.)* 

18.     TREATMENT  OF  WITNESSES  AND  LITIGANTS.     (59,  30;  ii,  XXV,  xlii.)* 

19.  Appeabancb  of  Lawteb  as  Witness  fob  E^s  Client.    (21,  22; 

XXXV,  xvi.)* 

20.  Newspapeb  Discussion  of  Pending  Litigation.    (19,  20.)* 

21.  PuNcruALiTT  AND  EXPEDITION.    (6,  36;  See  xxxvi.)* 

22.  Canon  ANif  Fairness.    (5;  xli.)* 

23.  Attitude  Toward  Jubt.    (60,  61,  17,  63;  xlvii.)* 

24.  Right  of  Lawteb  to  Contbol  the  Incidents  of  the  Tbial. 

(33;  X.)* 

25.  Taxing  Technical  Advantage  of  Opposite  Counsel;  Agbee- 

MBNTS  WITH  HiM.    (45,  43,  V,  ix.)* 

26.  Pbofessional  Advocact  Otheb  than  Befqbb  Courts.    (27.)* 

27.  Advertising,  Direct  ob  Indibect.    (18.)* 

28.  Stibbing  Up  Litioation,  Dibbgtlt  ob  Thbough  Agents.    (23.)* 

29.  Upholding  the  Honob  of  the  Profession.    (9,  65,  12;  xxxiii, 

xxxiv,  xxxvii,  xxxviii.)* 

30.  Justifiable  and  Unjustifiabi^  Litigations.    (15;  x,  xi,  xiv.)* 

31.  Responsibilitt  fob  Litigation.    (15;  x,  xi,  xiv.)* 

32.  The  Lawteb's  Dutt  in  its  Last  Analtsis.    (66;  xxi,  etc.)* 
OATH  OF  ADMISSION,  pp.  13-14. 

*The  Arabic  numerals  in  the  brackets  immediately  following  the 
QOioptic  titles  of  the  canons  are  cross-references  to  the  compilation  of 
canons  as  set  forth  in  Appendix  B  of  the  1907  report  of  the  Association's 
Committee  on  Canons  of  Ethics  (A.  B.  A.  Reports  XXXI,  681-684) ; 
the  Raman  numerals  are  cross-references  to  Hoffman's  Resolutions, 
reprinted  m  Appendix  U  of  the  committee's  1907  report  (id.  717-735). 


TRANSACTIONS 

OF  THE 

FORTY-FIFTH  ANNUAL  MEETING 

OF  THE 

American  Bar  Association 

HELD  AT 

SAN  FRANCISCO,  CALIFORNIA 
August  9»  10  and  11,  1922 

The  Forty-Fifth  Annual  Meeting  of  the  American  Bar  Asso- 
ciation convened  at  San  Francisco,  California,  with  Gordenio  A. 
Severance,  President  of  the  Association,  in  the  Chair. 


FiBST  Session. 

WedMsday,  AiLgust  9, 1922, 10  A.  M. 

The  President : 

It  gives  me  great  pleasure  to  introduce  Governor  Stephens, 
of  California,  who  will  speak  a  few  words  of  welcome  to  the 
Association. 

William  D.  Stephens,  Governor  of  California: 
I  come  this  morning,  not  only  as  a  citizen  of  this  great  state, 
but  also  as  the  Governor  of  this  Commonwealth,  to  bid  you 
welcome  to  this  Golden  State,  this  land  of  sunshine,  this  country 
of  the  out-of-doors.  And,  in  a  few  words,  I  desire  to  express 
something  of  what  our  people  feel  on  this  day  as  regards  this 
great  meeting. 

In  the  very  early  days  of  California,  and  before  the  coming 
of  the  Americans  in  any  great  number,  and  when  the  Spanish 
language  and  custom^  prevailed,  the  measure  and  quality  of 

(19) 


20  AMERICAN  BAB  ASSOCIATION. 

welcome  and  hospitality  to  the  guests  was  contained  in  the 
greeting  '^  This  house  is  yours,  Senor/'  The  language  and  the 
customs  have  long  since  changed,  but  the  spirit  which  actuated 
that  sentiment  is  as  real  and  fervent  today  in  California  as  in 
those  historic  days. 

The  people  of  California  in  their  pride  of  citizenship  in  a 
state  which  contributes  so  much  to  human  enjoyment  and 
human  welfare  as  well  as  to  prosperity,  have  always  taken  a  keen 
delight  in  sharing  the  joys  and  attractions  of  this  fair  land  with 
others,  perhaps  not  so  fortunate.  Mindful  of  this,  I  very  greatly 
appreciate  the  privilege  which  has  been  afforded  me  today  of 
standing  before  this  distinguished  gathering  of  jurists  and 
lawyers  representing  the  American  Bar  Association,  and  on 
behalf  of  the  people  of  California  as  a  whole  and  the  citizens  of 
this  truly  Californian  city  of  San  Francisco  in  particular, 
extending  to  you  a  California  welcome,  as  warm  and  genial  as 
its  simshine,  as  enduring  as  its  snow-capped  mountains,  and  as 
comprehensive  as  the  length  and  breadth  of  its  boundaries. 

On  behalf  of  the  people  of  California  I  want  to  thank  you 
for  the  signal  honor  you  have  paid  us  in  coming  here  to  hold 
this,  your  forty-fifth  annual  meeting.  During  the  forty-four 
years  since  the  first  meeting  of  your  Association  in  Saratoga 
Springs  in  the  great  State  of  New  York,  not  only  has  the 
profession  of  which  you  are  honored  members  been  benefited, 
but  the  nation  at  large  has  profited  by  the  constructive  work 
and  forward-looking  policies  of  your  organization.  TTpon  the 
roster  of  your  membership  are  to  be  found  the  names  of  men 
who  by  their  strength  of  character,  their  ability  and  intellectual 
attainments,  have  brought  honor  and  distinction  to  the  country 
and  have  had  much  to  do  with  shaping  its  destiny. 

I  believe  I  am  safe  in  saying  that  the  development  of  Ameri- 
can law  in  California  is  one  of  the  most  interesting  and  romantic 
chapters  to  be  found  in  the  entire  juridical  history  of  this 
country.  To  the  pioneers  of  1849  is  largely  due  the  adoption 
of  the  principles  of  the  common  law  in  this  state.  Prior  to  that 
time  and  when  the  native  Califomians  and  Mexican  people  were 
in'  possession,  affairs  of  government  and  of  the  people  were  ad- 
ministered under  the  Mexican  law  then  in  force,  but  the  coming 
of  over  70,000  Americans  during  that  one  year  of  1849  resulted 


ADDBESS  OF  WBLCOKB.  ^1 

in  an  almost  immediate  change  in  the  system  of  law^  practice 
and  procedure.  Just  as  the  first  settlers  on  the  Atlantic  CoaAX 
brought  with  them  the  common  law  of  England  and  established 
it  in  the  uninhabited  portions  of  that  section  of  the  country, 
so  did  the  emigrants  from  the  oommon  law  states  east  of  the 
Bockies  bring  with  them  the  same  system  of  law  and  establish 
it  here  ill  a  country,  then  almost  equally  unpeopled.  Among 
those  pioneers  were  lawyers  whose  great  abiUI^  was  even  then 
recognized,  and  who  in  after  years  served  the  nation  with  great 
distinction  and  honor.  I  refer  to  such  men  as  Justice  Stephen  J. 
Field,  to  whom  the  State  of  GaUfomia  is  indebted  for  the  first 
Practice  Act  of  California^  now  known  as  the  Code  of  Civil 
Procedure;  who  also  wrote  the  Criminal  Practice  Act,  now  the 
Penal  Code;  whose  work  in  connection  with  the  other  members 
of  the  first  Supreme  Court  of  this  state  brought  recognition  of 
that  tribunal  as  being  second  to  no  other  state  tribunal  in  the 
country;  who,  as  Associate  Judge  of  the  Supreme  Court  of  the 
United  States,  covering  a  period  of  thirty-five  years,  added  so 
much  to  what  is  now  the  accepted  law  of  this  country  as  to 
entitle  him  to  the  distinction  of  having  been  one  of  the  greatest 
jurists  his  nation  has  ever  produced. 

California  also  has  contributed  to  the  Supreme  Court  of  the 
United  States  another  outstanding  figure  in  the  person  of 
Associate  Justice  Joseph  McKenna.  I  might  also  mention  in 
that  connection  such  leading  jurists  as  Judge  H.  A.  Hastings, 
the  first  Chief  Justice  of  the  state  and  the  founder  of  the  Hast- 
ings Law  School;  Judge  Peter  H.  Burnett,  Associate  Justice 
of  the  Supreme  Court,  and,  by  the  way,  the  first  Governor  of 
California  under  the  American  rule ;  Judge  Joseph  G.  Baldwin, 
Associate  Justice  of  the  Supreme  Court,  also  the  author  of  that 
delightful  work  "Flush  Times  id  Alabama  and  Mississippi"; 
Judge  Hugh  Murray,  one  of  the  most  remarkable  lawyers  who 
ever  sat  on  the  Bench,  who  died  at  the  age  of  31  years  after 
having  then  served  for  four  or  five  years  as  Chief  Justice  of  the 
Supreme  Court.  In  the  later  years,  the  lawyers  of  this  state 
remember  with  pride  such  great  lawyers  and  jurists  as  McKins- 
try,  Wallace,  Bhodes,  Sharpstein,  Boss  (now  Judge  of  the  United 
States  Circuit  Court  of  Appeals  for  the  Ninth  Circuit),  Thornton, 
Beatty,  and  many  other  men  of  equal  learning  and  distinction. 


22  AMERICAN   BAR  ASSOCIATION. 

I  have  referred  to  the  fact  that  upon  you  as  lawyers  and 
jurists  rests  primarily  the  duty  of  upholding  the  principles  of 
constitutional  law  given  us  by  the  fathers,  as  well  as  the  great 
body  of  law  based  upon  those  principles.  It  is  a  great  responsi- 
bility. I  do  not  hesitate  to  say  that  if  our  form  of  Government 
and,  indeed,  our  civilization  shall  survive,  it  is  absolutely  essen- 
tial  that  respect  for  the  law  be  insisted  upon.  At  no  period  in 
our  history  has  there  been  greater  need  for  obedience  to  law  and 
the  orderly  processes  of  the  law. 

To  such  .men  as  compose  the  membership  of  this  great  organi- 
zation, to  the  members  of  the  American  Bar,  to  the  men  who  by 
their  intellectual  attainments  occupy  the  front  rank  of  their 
profession,  and  whose  training  fits  them  to  formulate  and  inter- 
pret the  law,  must  this  nation  look  in  large  part  for  the  solution 
of  these  great  problems  which  are  now  before  us.  In  that  direc- 
tion lies  a  great  opportunity  for  you  to  bring  together  whatever 
discordant  and  opposing  elements  there  may  be  under  a  system 
of  legal  procedure  which  will  insure  justice,  as  well  as  protec- 
tion, to  all. 

In  conclusion,  I  again  beg  you  to  believe  that  the  arms  of  the 
people  of  California  are  open  wide  to  y6u  with  the  earnest 
hope  that  your  deliberations  here  may  result  in  the  greatest 
measure  of  good  to  the  entire  nation,  and  that  the  recreation 
which  will  be  afforded  you  by  the  hospitable  people  of  San 
Francisco,  may  leave  a  pleasing  and  abiding  memory  of  Cali- 
fornia in  years  to  come. 

The  President: 

I  now  have  the  pleasure  of  presenting  to  you  Maurice  B. 
Harrison,  of  the  San  Francisco  Bar,  who  will  extend  to  you  a 
few  words  of  greeting. 

Maurice  E.  Harrison,  of  San  Francisco,  Cal. : 

This  meeting  is  a  memorable  occasion  for  the  Bar  of  Cali- 
fornia. Although  our  situation  is  remote  from  the  great  western 
centers,  we  are  acquainted  with  the  high  purposes  and  the  sub- 
stantial achievements  of  this  Association  and  we  have  learned 
from  our  own  history  the  lesson  of  the  essential  unity  of  Ameri- 
can law  and  of  the  necessity  of  united  action  on  the  part  of 
American  lawyers.    The  legal  experience  of  this  state  has  been 


ADDBESS  OF   WELCOME.  23 

in  some  respects  unique.  Its  early  lawyers  came  from  all  parts 
of  the  nation — ^from  north  and  south  and  middle  west — ^and 
they  were  enabled  to  build  the  foundations  of  our  legal  structure 
by  their  common  fealty  to  a  common  system  of  law.  New 
England  gave  us  in  Stephen  J.  Field  the  greatest  of  our  pioneer 
judges,  while  the  South  gave  us,  in  Bandolph  and  McAllister 
and  Garber,  the  leaders  of  our  early  Bar.  Our  first  constitution 
waa  modelled  on  those  of  New  York  and  Iowa.  Our  property 
law  is  largely  founded  on  that  of  New  York  and  Texas.  Of 
these  different  American  elements  the  law  of  this  statue  has  been 
fashioned.  The  lawyers  who  came  to  Califomia  from  every 
eastern  state  after  the  American  conquest  found  a  native  popula- 
tion accustomed  to  the  rule  of  the  Civil  Law  under  Mexican 
occupation;  and  they  established  the  common  law  in  its  place. 
They  found  a  mining  population  all  too  ready  to  disregard  the 
orderly  processes  of  justice  in  favor  of  lynch  law  and  mob 
violence,  and  they  obtained  the  recognition  of  the  supremacy 
of  the  courts  after  repeated  struggles  with  the  impulses  of 
disorder  in  a  new  and  turbulent  community.  They  enriched 
the  jurisprudence  of  America  by  translating  into  actual  law 
the  customs  of  the  miners  with  regard  to  the  appropriation  of 
water.  Fifty  years  ago,  under  the  inspiration  of  David  Dudley 
Field,  a  former  President  of  this  Association,  they  dared  to 
make  the  experiment  of  systematizing  and  to  some  extent  modi- 
fying the  principles  of  the  American  common  law.  If  at  times 
4he  statute  law  of  this  state  may  have  seemed  to  be  radically 
experimental,  you,  th^  men  who  influence  the  law  of  other  states, 
have  had  at  least  the  benefit  of  our  experience.  The  public 
utility  and  workmen's  compensation  acts  of  the  western  states, 
novel  though  they  seemed  at  the  time  of  their  enactment,  are 
now  a  normal  element  in  American  legislation.  And  throughout 
our  state's  lifetime,  we  who  have  been  so  largely  governed  by 
federal  law,  both  in  our  seaports  on  the  coast  and  on  our  public 
lands  of  the  interior,  we  who  have  known  the  splendid  traditions 
of  our  own  federal  Bench,  have  never  lost  sight  of  our  brother- 
hood with  the  lawyers  of  other  states.  Around  the  Bay  of 
San  Francisco  are  three  prospering  law  schools  which  maintain 
the  standards  recommended  by  this  Association;  and  this  year 
we  shall  submit  to  the  referendum  of  the  voters  of  California 


24  AMERICAN   BAB  ASSOCIATION. 

the  question  whether  the  standards  of  the  profession  shonld  be 
protected  by  prohibiting  the  unlawful  practice  of  the  law.  And 
if  at  this  time,  when  the  lofty  patriotism  of  wartime  may  seem 
to  the  casual  observer  to  have  been  quaffed  so  deeply  as  to  leave 
only  the  dregs  of  a  mean  bigotry  and  intolerance,  we  can  help  to 
repudiate  the  suggestion  that  American  ideals  of  justice  have 
failed  and  to  reassert  their  power  to  deal  with  the  needs  of  a  pe- 
riod of  reconstruction ;  if  we  can  help  you  to  justify  our  common 
conviction  that  the  lawTepresents  more  than  the  sanction  of  the 
sheriff  who  enforces  it,  and  more  than  the  influence  of  selfish 
interests  which  sometimes  twist  it  awry,  and  that  it  is  in  truth 
an  attempt  to  reach  the  goal  of  certain  and  even-handed  justice, 
our  service,  gentlemen,  is  at  your  command. 

The  President : 

Your  Excellency  and  Mr.  Harrison,  we  are  very  grateful, 
indeed,  for. your  gracious  welcome  to  California.  Many  of  us 
have  received  this  same  generous,  kind-hearted  welcome  to  this 
beautiful  state  many  times.  Some  of  us  are  here  for  the  first 
time.  But  those  who  come  to  California  this  year  in  their  initial 
trip  across  the  Continent,  knew  all  about  the  state  before  they 
came.  When  we  decided  to  bring  the  Association  out  here  this 
year,  we  knew  we  were  not  taking  any  risk,  so  far  as  hospitality 
was  concerned.  Our  only  fear  was  that  we  might  so  suffer 
from  over-hospitality  that  we  would  be  unable  to  attend  to 
our  legitimate  business. 

Seriously,  it  is  a  great  pleasure,  for  all  the  members  of  this 
Association  who  have  come  from  east  of  the  mountains  to  visit 
this  beautiful  state.  It  is  immaterial  whether  we  first  looked 
down  into  the  depths  of  the  blue  canyon,  or  dropped  over  the 
Cajon  Pass  into  the  smiling  valleys  with  the  golden  apples  and 
the  flowers  of  the  south — California  always  gives  a  thrill.  It  is 
different  from  any  other  state.  Tou  are  different  in  your  history. 
There  is  an  air  of  old  romance  that  hangs  about  this  state  that 
we  are  deprived  of  in  the  more  prosaic  regions  of  the  east.  You 
not  only  have  your  beautiful  scenery,  your  lovely  fruits  and 
flowers,  but  you  have  the  story  of  the  old  padres,  who  established 
their  missions  up  and  down  this  coast,  whose  names  and  whose 
religion  are  perpetuated  in  the  names  of  your  cities.    And  there 


BBADIKa  OF  LETTEBS.  26 

is  80  much  of  that  little  touch  of  the  old  life  etill  hanging  about 
California^  that  it  has  a  charm  which^  as  I  have  said^  we  are 
deprived  of  in  the  harsher  regions  of  the  east 

Beyond  that^  we  are  all  very  conscious,  as  was  said  by  the 
Governor,  that  the  old  greeting,  "  My  house  is  yours,*'  has  been 
kept  alive  under  the  American  occupation.  Your  hospitality  is 
unbounded;  your  climate,  your  scenery,  your  people  are  charm- 
ing, and  we  are  very  happy  to  be  here,  and  know  we  are  going 
to  be  very  happy  while  we  are  here. 

The  Secretary  then  read  a  telegram  from  the  President  of  the 
United  States. 

WnnB  HousB,  Washinoton,  D.  C. 
Hon.  Cordenio  A.  Sevenmce,  PreMenl,  American  Bar  Assooiaticn,  San 
Francisco,  Calijomia, 

It  alwajrs  ia  a  pleasure  to  place  on  record,  at  the  time  of  the  annual 
convention  of  the  American  Bar  Association,  an  expression  of  confi- 
dence in  its  aims  and  ends.  Its  long  career  of  active  participation  in 
taping  the  ethical  ideals  and  practical  policies  of  our  country  has  been 
uniformly  marked  by  a  safe  and  steady  progress  toward  the  realization 
of  that  high  destiny  which  is  our  finest  national  aspiration.  Its  counsels 
have  been  those  of  liberality  and  constructive  purpose,  restrained  and 
moderated  by  a  fitting  sense  of  responsibility  for  the  preservation  of 
all  that  is  good  and  useful  in  existing  institutions. 

There  never  was  a  time  when  our  country,  indeed  the  whole  world, 
stood  more  in  need  of  clear-visioned  comprehension  of  the  problems 
whi<^  confront  human  institutions. 

I  cannot  refrain  from  urging  upon  your  Association  the  importance  of 
considering  these  problems  in  the  light  of  the  broadest  perception  of 
their  hiunan  beanngs.  Those  who  would  highly  serve  their  fellows 
have  need  for  full  measure  of  intellectual  honesty,  together  with 
courage  to  dare  greatly.  To  whom  better  than  your  own  profession, 
learned  in  the  law,  understanding  its  unending  evolution,  should  the 
community  turn  for  guidance  and  help  in  trying  times. 

Warbbn  G.  Habding. 

The  Secretary  then  read  a  letter  from  the  Lord  Chancellor 

of  Great  Britain. 

HovsB  OF  LoBDS,  July  18,  1022. 
Cordenio  A.  Severance,  Esq^  President,  American  Bar  Association, 
Sm: 

Lord  Shaw  is  no  doubt  well  known  to  you  as  a  member  of  our  supreme 
tribunal,  sitting  both  as  a  Lord  of  Appeal  in  ordinary,  and  as  a  member 
of  the  judicial  Committee  of  the  Privy  Council.  Between  the  Ameri- 
can Bar  on  the  one  hand  and  the  English  and  Scottish  Bars  on  the 
other,  there  are  many  close,  intimate  bonds.  We  have  lately  had  the 
privilege  of  welcoming  here  in  England  your  great  and  genial  Chief 
Justice.  Now  we  send  Lord  Shaw  to  you,  with  a  full  confidence  that,  like 
Mr.  Taft,lie  will  draw  those  bonds  still  closer.  He  is,  indeed,  a  very  wise 
and  learned  Judge.  I  send  through  him  my  best  wishes  for  the  prosperity 


26  AMERICAN  BAR  ASSOOIATION. 

of  the  American  Bar  Association.  Mutual  knowledge  will  produce 
mutual  confidence,  and  such  visits  as  those  of  Mr.  Taft  and  Mr.  Beck  to 
England,  and  of  Lord  Shaw  to  the  American  Continent,  are  the  best 
means  whereby  we  can  learn  to  know  and  trust  each  other.  ^ 

Yours  faithfully, 

BmKENHBAD. 

I 

1 

The  Secretary  then  read  a  telegram  from  the  Attorney  Gen- 
eral of  the  United  States. 

Washikqton,  D.  C,  August  8,  1922. 
Hon,  C.  A,  Severance,  President  American  Bar  Association,  San  Fran- 
cisco, CaUforrua, 
I  sincerely  regret  my  inability  to  be  present  at  the  meeting  of  the 
American  Bar  Association.  The  pressure  of  pubhc  business  compels  my 
presence  here.  Kindly  accept  and  convey  to  the  officers  and  my  fellow 
members  of  the  American  Bar  Association  my  highest  respect  and  the 
deep  gratitude  I  feel  towards  the  members  for  their  support  of  the 
Department  of  Justice  in  its  efforts  to  maintain  resfpect  for  law,  to 
protect  life  and  property,  and  to  support  the  fundamental  principles 
of  government  so  sacred  to  the  liberty,  security,  peace  and  prosperity 
of  the  American  people. 

H.  M.  Daughebtt, 

AUomey   General, 

The  Secretary  then  made  several  annoimcements  relating  to 
certain  events  of  the  meeting. 

The  President: 

One  of  the  most  charming  events  of  our  stay  in  California  this 
week  will  be  a  visit  to  the  wonderful  grove  of  redwoods  of  the 
Bohemian  Club.  All  arrangements  for  that  excursion  are  in  the 
hands  of  Mr.  Prank  P.  Deering,  of  the  San  Francisco  Bar. 

Praak  P.  Deering,  of  San  Francisco,  then  made  an  announce- 
ment relating  to  the  excursion. 

The  President : 

The  next  order  of  business  is  the  report  of  the  Secretary. 

(The  Secretary's  report  was  stibmitted.    See  report,  page 
103.) 

The  President : 

As  the  report  of  the  Secretary  requires  no  action,  it  will  be 
ordered  placed  on  file. 

The  next  order  of  business  is  the  report  of  the  Treasurer. 
{The  Treasurer's  report  was  submitted.    See  report,  page 
106.) 


ELBCTION   OF  KEKBEBS.  27 

The  President : 

The  report  of  the  Treaaurer  will  be  referred  to  the  Auditing 
Committee. 

Next  in  order  is  the  report  of  the  Executive  Committee^  which 
will  be  read  by  the  Secretary. 

(The  report  of  the  Executive  Committee  was  read.    See 

report,  page  110,) 

The  Secretary: 

I  move,  Mr.  President,  the  approval  and  adoption  of  the 
report  submitted  by  the  Executive  Committee. 

The  motion  was  seconded  from  the  floor  and  carried. 

The  President : 

The  next  order  of  business  is  the  nomination  and  election  of 
members.  I  believe  there  are  a  few  names  to  be  voted  on  at  this 
time. 

The  Secretary: 

The  Chairman  of  the  Membership  Committee  has  seventeen 
applications^  duly  certified  by  the  Local  Council  and  recom- 
mended by  the  General  Council  at  its  session  this  morning  for 
election  to  membership.  They  are  all  properly  certified^  and  all 
are  now  eligible  for  election.  It  is  not  necessary  to  read  the 
names  or  the  states  they  represent  unless  requested.  I  move 
that  they  be  duly  elected  members  of  the  Association. 

The  motion  was  seconded  and  carried. 

The  President  then  delivered  the  Annual  Address. 
(See  Address  on  page  163,) 

Thomas  W.  Shelton  and  S.  E.  Ellsworth  offered  resolutions 
which,  wiihout  reading,  were  referred  to  the  Executive  Copi- 
mittee. 

The  Association  then  took  a  recess  until  2.80  P.  M. 


28  AMSaiCAN   BAR  ASSOCIATION. 

Second  Sbssion. 

Wednesday,  August  9, 1922,  £J0  P.  M. 
In  joint  session  with  the  California  Bar  Association^  Jeff 
Paul  Chandler^  President  of  the  CaUfomia  Bar  Association, 
presiding. 

Chairman  Chandler: 

It  is  a  very  great  privilege  and  honor  for  the  California 
Bar  Association  to  have  the  privilege  of  meeting  with  the  Amer- 
ican Bar  Association.  We  live  away  out  on  the  fringe  of  the 
continent,  and  we  hear  of  the  eminent  gentlemen  in  our  pro- 
fession; from  time  to  time,  we  follow  their  careers;  and  it  is  a 
great  privilege  for  us  to  meet  them  personally  and  to  draw  inspi- 
ration from  them. 

The  Bar  of  the  State  of  California  is,  in  its  humble  way, 
trying  to  carry  on  the  traditions  of  the  profession  of  the  law, 
and  to  see  that  this  comparatively  new  commimity,  compara- 
tively new  part  of  the  United  States,  has  a  reverence  for  the  law 
and  that  the  Constitution  which  has  been  given  to  us  by  our  fore- 
fathers may  be  carried  out  in  all  of  its  integrity.  Little  did 
they  think,  when  they  drew  that  instrument,  that  this  country 
would  ever  extend  to  the  Pacific  Coast.  It  would  have  been  very 
doubtful,  indeed,  in  their  minds,  had  it  been  suggested,  whether 
a  territory  as  large  as  the  present  United  States  could  be  success- 
fully operated  under  one  form  of  government.  When  the  first 
Americans  came  to  this  state,  California  was  very  far  from  the 
rest  of  the  states.  And,  as  you  have  been  told  frequently  since 
you  came,  because  we  are  so  proud  of  it,  the  earliest  lawyers 
in  this  community  did  establish  the  government  and  it  has  been 
perpetuated  by  lawyers  who  have  helped  to  build  up  this  splen- 
did community. 

And  let  me  extend  to  you,  in  closing  this  part  of  my  remarks, 
out  profound  gratitude  and  respect  and  appreciation  for  your 
presence  here  among  us. 

After  gold  was  discovered  in  California,  then  came  the  ques- 
tion of  water.  Gold  would  not  make  a  permanent  state — ^it  was 
necessary  to  develop  agriculture,  and  the  life  of  agriculture  in 
this  part  of  the  country  is  water.  *  They  had  to  develop  a  system 
of  water.     They  had  to  adjudicate  the  rights  as  between  the 


AI>DB£SS   OF  JUSTICE   SHAW.  ^9 

different  settlers  on  the  streams.  And  a  great  body  of  law  has 
been  built  up  in  that  connection^  and  has  seryed  to  develop  the 
resources  of  this  country. 

In  the  early  days  of  Los  Angeles^  when  it  was  a  very  arid 
country,  when  we  needed  much  water  and  didn't  know  whether 
or  not  we  had  it,  when  water  rights  were  rather  inchoate, 
unknown,  and  occasion  had  not  arisen  very  frequently  for  adju- 
dicating the  differences  which  subsequently  did  arise — at  that 
time  a  young  man  came  from  Indiana,  and  we  got  acquainted 
with  him  in  Los  Angeles,  and  then  elected  him  to  the  Superior 
Bench.  He  began  the  study  of  law — or  the  study  of  water  law, 
and  in  the  course  of  time  he  came  to  be  recognized  as  the  great 
authority  upon  water  in  our  part  of  the  state,  and  we  were  very 
proud  of  him.  He  was  elevated  to  the  Supreme  Court  of  this 
state^  and  later  became  Chief  Justice  of  the  Supreme  Court  of 
California.  And  in  these  higher  positions,  he  came  to  be  recog- 
nized as  the  authority  upon  water  law  in  California,  and  perhaps 
in  the  west.  His  genius  has  aided  in  creating  that  fine  system 
of  water  law  which  is  now  in  operation,  to  the  perfect  satisfac- 
tion of  all  of  the  residents  of  this  commonwealth,  and  perhaps 
those  of  the  West. 

I  take  great  pleasure  in  introducing  to  you  Judge  Lucien 
Shaw,  Chief  Justice  of  the  Supreme  Court  of  the  State  of 
California. 

Chief  Justice  Shaw  then  read  his  address  upon  '*  The  Develop- 
ment of  Water  Law  in  California." 

{See  Address,  page  189.) 

Chairman  Chandler: 

The  next  address  upon  the  program  was  to  have  been  delivered 
by  Governor  Henry  J.  Allen,  of  Kansas,  on  the  subject  "  Kansas 
Industrial  Court.*'  Governor  Allen  has  telegraphed  that  it  will 
be  impossible  for  him  to  leave  the  State  of  Kansas.  He  has 
therefore  requested  Senator  F.  Dumont  Smith,  of  Kansas,  to 
deliver  an  address  upon  the  subject  that  had  been  assigned  to 
him.  Senator  Smith  helped  draw  the  law.  He  has  been  special 
counsel  for  the  State  of  Kansas  during  the  entire  time  of  the 
administration  of  this  law,  and  he  is  very  familiar  with  its  pro- 
visions. 


30  AlCEBIOAK  BAR  AS600IATI0N. 

I  take  pleasure  in  introducing  to  you  Mr.  F.  Dumont  Smith, 
of  Kansas. 

The  address  of  F.  Dumont  Smith  was  then  delivered. 
(See  Address,  page  208.) 

The  Association  then  took  a  recess  until  8  P.  M. 

Thibd  Session. 

Wednesday,  August  9,  1922,  8  P.  M. 

The  meeting  Was  called  to  order  by  the  President,  Cordenio  A. 
Severance. 

The  Secretary  made  some  further  announcements,  and  then 
read  the  list  of  the  new  General  Council  nominated  by  the 
respective  state  delegations.    The  nominees  were  declared  elected 
without  further  action  on  the  part  of  the  Association. 
(See  List  of  Qenerai  Council,  page  H8.) 

The  President: 

We  have  been  happy  for  a  number  of  years  to  receive  as  our 
guest  some  distinguished  member  of  the  British  Bar  or  the 
British  Bench.  Sometimes,  on  rather  rare  occasions,  those  rep- 
resentatives are  Englishmen — ordinarily  they  are  Scotchmen. 
As  you  know,  the  Scotch  for  some  time  have  been  employed 
largely,  as  I  have  been  told  by  my  friend  MacKenzie  Gordon,  of 
San  Francisco,  in  governing  the  British  Empire.  In  1913, 
the  members  of  the  Association  who  were  at  Montreal,  will  recall 
the  remarkable  address  delivered  by  another  great  Scotch  Judge, 
Lord  Haldane.  You  will  remember  that  he  at  that  time  was  the 
Lord  Chancellor,  and,  to  do  us  the  compliment  of  meeting  with 
us,  he  was  obliged  to  place  in  the  commission  of  England  the 
great  seal  of  the  King,  and  I  believe  also  the  conscience  of  the 
King,  of  which  he  is  the  keeper.  It  was  a  great  compliment  to 
us,  because  it  was  the  first  time  since  Cardinal  Richelieu  that 
any  Lord  Chancellor  has  been  without  the  dominion  of  the 
King.  Since  then,  I  think  that  rule  has  been  further  violated. 
Then  again,  we  had  Lord  Finlay,  another  Scotchman,  who  is 
now  sitting  upon  the  great  international  court  at  The  Hague. 
Tonight,  for  the  third  time  within  these  few  years,  we  have  the 


ADDRESS  OF   tOBD  SHAW.  31 

pleasure  of  greeting  another  great  Scotchman,  a  gentleman  with 
a  most  remarkable  career  in  politics^  but  always  chiefly  in  the 
line  of  his  own  profession  of  the  law.  Like  our  own  Chief 
Justice^  he  has  not  ceased  to  be  a  lawyer  because  he  is  a  judge. 
It  gives  me  the  greatest  pleasure  to  present  to  you  as  the  first 
speaker  this  evening,  Lord  Shaw  of  Dunfermline,  who  will 
now  address  you. 

Lord  Shaw  of  Dunfermline : 

This  address  was  framed  before  I  left  the  British  shore.  I 
thought  I  was  to  speak  to  men.  I  find  a  charming  variation  in 
your  legal  procedure,  and  that  a  large  and  beautiful  portion  of 
the  audience  is  composed  of  ladies.  Now,  ladies,  don^t  be  dis- 
appointed. I  must  read  the  address  as  it  was  written,  and  it  was 
written  to  the  gentlemen  of  the  Bar  of  America.  But  don't  be 
disappointed,  because,  if  the  Chief  Justice  will  permit  me, 
gentlemen  on  this  occasion  will  always  embrace  ladies. 

The  address  of  Lord  Shaw  was  then  delivered. 
{See  Address,  page  219.) 

The  President : 

We  have  listened  tonight  to  a  wonderful  oration.  I  do  not 
recall  a  more  learned,  lucid,  or  interesting  address  in  the  history 
of  this  Association.  But,  members  of  the  Association,  you  have 
only  heard  from  one  side  of  the  channel.  You  are  now  to  hear 
from  a  gentleman  who  comes  from  a  war-stricken  country,  but  a 
country  whose  brave  sons  have  not  lost  heart  because  of  being 
war-stricken. 

The  eminent  lawyer  from  Paris  who  is  to  speak  to  you  is 
showing  a  courage  that  I  am  sure  none  of  us  possess.  I  am 
confident  no  man  in  the  Bar  Association  here,  with  the  excep- 
tion of  one  or  two  gentlemen  whom  I  see  at  my  left,  would  have 
the  courage  to  go  to  Paris  and  address  an  audience  of  French 
lawyers  in  their  own  tongue.  But  our  friend  comes  to  us  so 
equipped  that  he  can  speak  to  us  in  English.  It  is  only  in 
recent  years,  as  you  all  know,  that  our  French  friends  have  re- 
garded it  as  essential  to  know  any  language  but  French,  because 
every  gentleman  was  supposed  to  know  French.  But  they  have 
found  in  the  last  five  or  six  years  that,  while  Americans  can't 

2 


32  AMERICAN   BAR   ASSOCIATION. 

all  speak  French,  they  can  fight  like  Frenchmen,  and  many  of 
us  are  learning  their  tongue. 

I  spoke  of  the  meeting  in  1913.  We  then  had  with  us  at 
Montreal  that  great  French  advocate  Labori.  He  has  passed 
away  since  then,  but  it  is  his  intimate  friend  who  has  been 
named  by  the  Council  of  Advocates  of  the  City  of  Paris  to  speak 
to  us  tonight,  and  I  have  great  pleasure  in  presenting  to  you 
Monsieur  Henry  Aubepin  of  the  Paris  Bar. 

The  address  of.  M.  Aubepin  was  then  delivered. 
(See  Address,  poffe  244.) 

Adjourned  until  August  10  at  10  A.  M. 


Fourth  Session. 

Thursday,  August  10,  1922,  10  A.  M. 

The  President : 

Gentlemen  of  the  Association,  I  have  as  much  of  assurance  as 
any  decent  man  ought  to  have,  but  I  haven't  enough  to  make  a 
speech  presenting  to  you  the  speaker  this  morning,  as  you  know 
him  so  much  better  than  you  do  me.  The  Chief  Justice  of  the 
United  States. 

Chief  Justice  Taft  then  delivered  his  address  entitled  "  Pos- 
sible and  Needed  Reforms  in  the  Administration  of  Justice  in 
the  Federal  Courts/' 

(See  Address,  page  250.) 

« 

The  President : 

We  will  now  listen  to  a  report  of  the  Executive  Committee 
upon  a  resolution  which  was  yesterday  introduced,  and  which 
embodies  the  suggestion  with  which  the  Chief  Justice  closed 
his  remarks.  This  report  is  the  unanimous  report  of  the  Exec- 
utive Committee,  and  will  now  be  read  by  the  Secretary. 

The  Secretary : 

The  resolution  is  as  follows : 

Whereas,  One  of  the  gravest  duties  confrontine  the  judges  and 
lawyers  of  America  is  an  administration  of  justice  that  will  command 
the  respect  and  veneration  of  the  people, 


RESOLUTION  ADOPTED.  33 

Resolved,  Pint,  that  Congress  be  and  it  is  hereby  respectfully  peti- 
tioned to  provide  by  suitable  statutory  law  for  the  creation  of  a  com- 
mission, the  personnel  of  which  shall  be  appointed  by  the  President 
and  be  composed  of  two  Justices  of  the  Supreme  Court,  two  Circuit 
Judges,  two  District  Judges,  and  three  members  of  the  Bar  of  high 
standing  and  qualified  by  learning  and  experience.  Such  Commission 
shall  prepare  and  recommend  to  Congress  amendments  to  the  present 
statutes  and  the  judicial  code,  authorizing  a  unit  administration  of  law 
and  equity  in  one  form  of  civil  action. 

Second,  that  such  act  shall  provide  for  a  permanent  commission, 
created  in  the  same  manner,  with  power  to  prepare  a  ^stem  of  rules 
of  procedure  for  adoption  by  the  Supreme  Court,  with  power  to  amend 
from  time  to  time.  Such  rules  and  amendments,  after  approval  by 
the  Supreme  Court,  shall  be  submitted  to  Congress  for  its  action,  and 
shall  become  effective  in  six  months  after  such  submission,  if  Congress 
shall  take  no  action  thereon. 

The  Committee  moves  the  adoption  of  that  resolution.- 
The  motion  was  seconded  from  the  floor. 

The  President: 

It  is  moved  and  seconded  that  the  report  of  the  Committee 
as  read  by  the  Secretary,  be  adopted.  Are  there  any  remarks  ? 
If  not,  all  in  favor  of  the  adoption  of  the  report  will  say  "  Aye.'* 
Opposed,  "  No."    It  is  unanimously  carried. 

The  Secretary : 

At  the  request  of  the  members  of  this  Association  and  of  the 
members  of  the  Bar  from  the  Pacific  Coast  States,  your  attention 
is  called  to  the  special  notice  on  our  program  of  a  meeting  of  the 
members  of  the  Bar  from  those  states  at  4.30  o'clock  this  after- 
noon in  the  Yosemite  Hall  of  the  Native  Sons  Building.  A 
matter  of  importance  to  be  discussed  at  that  meeting  is  indicated 
on  the  program. 

At  the  session  of  the  Association  tonight,  the  first  floor  of 
the  auditorium  will  be  reserved  for  members  of  the  American 
Bar  Association  and  their  wives  until  eight  o'clock.  After  that 
the  hall  will  be  thrown  open  to  the  public. 

The  President : 

The  next  order  of  business  is  the  report  of  the  Committee  on 
Promotion  of  American  Ideals.  In  the  absence  of  the  Chair- 
man of  the  committee,  Judge  Wade,  of  Iowa,  the  report  will 
be  read  by  B.  E.  L.  Saner,  of  Texas,  the  second  member  of  the 
committee. 


34  AMSEICAN   BAB  ASS00UT)[6^. 

Committee  on  Promotion  of  American  Ideals: 

The  report  of  the  Committee  on  Promotion  of  American  Ideak 
was  read  by  Mr.  Saner. 

{See  Report,  page  416.) 

E.  E.  L.  Saner,  of  Texas: 

I  move  that  this  report  be  adopted,  and  the  recommendations 
therein  contained  be  approved. 

The  President : 

I  understand  the  mover  of  the  motion  has  amended  the  written 
report  .so  as  to  provide  that  the  committee  to  be  appointed 
should,  for  the  present,  be  a  special  committee,  owing  to  the 
fact  that  no  new  standing  committee  can  be  created  without  an 
amendment  to  the  Constitution.  Are  there  any  remarks  to  be 
made  upon  the  subject? 

William  H.  Lamar,  of  the  District  of  Columbia: 
It  would  hardly  seem  necessary  to  offer  anything  in  support 
of  this  resolution,  in  view  of  the  manifest  way  in  which  the 
proposition  has  been  received  by  the  Association.  I  have  been 
requested  to  furnish  to  the  meeting  some  data  on  the  subject 
that  may  be  of  interest  to  you,  however. 

This  report  of  the  committee  covers  a  wide  field  of  all  classes 
of  matter  that  is  being  injected  into  the  public  mind,  from  all 
of  the  discordant  sources  that  tend  to  weaken  the  strength  of  our 
fundamental  principles  of  government.  Millions  of  newspapers 
and  periodicals  are  putting  out  matter  at  all  times  that  seriously 
affects  the  public  mind.  It  is  not  with  respect  to  the  general 
class  of  literature  of  this  kind  that  I  would  draw  your  attention 
at  the  present  time.  As  solicitor  for  the  Post  Office  Depart- 
ment for  eight  years,  I  had  peculiar  opportunity  to  see  the  So- 
cialistic and  Communistic  matter  that  is  being  published  and 
circulated  throughout  this  country.  I  simply  wish  to  call  atten- 
tion to  the  number  of  publications  that  are  printing  this  matter 
and  giving  it  to  the  public  at  all  times.  The  present  number  of 
radical  publications  in  this  country,  published  in  foreign  Ian* 
guage  and  in  English,  amounts  to  over  600.  These  publications 
are  such  that  it  is  difficult  to  determine  their  entire  circulation, 


BEP0BT8  OP  SE0TI0N8,  35 

but  some  87  of  the  600,  weekly  and  daily^  go  to  the  American 
people  of  the  class  who  read  this  kind  of  matter,  to  the  extent 
of  over  700,000  copies.  Yon  find  them  on  the  news-stands.  But 
this  number  that  I  am  talking  about  are  sent  through  the  mails. 
Of  the  remainder  of  the  600  publications,  there  is  no  definite 
way  of  determining  their  circulation  from  oflBcial  sources.  But 
it  is  evident  that  there  are  from  two  and  a  half  to  three  million 
people  in  the  United  States  that  read  this  class  of  injurious 
matter,  so  forcibly  referred  to  by  our  President,  and  referred 
to  in  a  more  general  way  in  the  report  of  the  committee  which 
has  just  been  read. 

The  President : 

If  there  are  no  further  remarks  upon  the  report,  the  question 
is  on  the  adoption  of  the  report  of  the  committee  and  the  ap- 
proval of  its  recommendations.  All  in  favor  of  the  adoption 
and  approval  will  say  '^  Aye.*'  Opposed,  "  No.*'  I  am  glad  to 
say  it  is  unanimously  adopted. 

The  Association  then  took  a  recess  until  2  P.  M. 


Fifth  Session. 

Thursday,  August  10,  1922,  2  P.  M. 

Charles  Thaddeus  Terry,  of  New  York,  Acting  Chairman : 

Will  the  Associatioi>  please  be  in  order.    We  have  a  precise 
program  for  this  afternoon's  session. 

Section  of  Criminal  Law : 

W.  0.  Hart,  of  Louisiana: 

Mr.  Abbott  being  imavoidably  absent  has  requested  me  as 
Vice-President  of  the  Section  to  make  a  very  brief  report. 

The  report  of  Section  of  Criminal  Law  was  then  read. 
{See  Report  in  Appendix,) 

Mr.  Hart: 

I  move  that  the  report  be  received,  and  be  made  a  part  of  the 
records  of  the  Association.  " 

The  motion  was  seconded  and  carried. 


36  AMERICAN   BAR  A8S0GIATI()N. 

Comparative  Law  Bnreau: 

Robert  P.  Shick,  of  Pennsylvania: 

I  have  no  report  to  submit,  other  than  the  simple  annals  of 
the  work  which  we  have  done  during  the  past  year,  and  the  fruit 
of  which  you  have  seen  in  the  April  number  of  the  Journal. 
In  this  day  of  budget  reform,  it  might  be  well  to  call  the  Asso- 
ciation's attention  to  the  fact  that  the  Bureau  has  not  cost  the 
Association  one  dollar  during  the  last  year,  and  for  several 
years  last  past.  We  have,  however,  quite  a  number  of  publica- 
tions that  I  think  would  be  of  interest  to  the  members  of  the 
Association,  and  we  invite  your  attention  to  those  translations  of 
foreign  codes.  They  will  furnish  you  quite  a  little  of  intellectual 
pabulum,  if  you  would  purchase  them,  and  you  would  also  help 
us  to  go  forward  in  the  work  of  making  other  transactions.  We 
have  one  large  translation,  a  monumental  piece  of  work,  the 
translation  of  a  Spanish  publication,  which  I  think  is  of  great 
interest  out  here  in  California,  and  particularly  all  through  the 
Spanish  State*.  We  would  be  very  much  encouraged  if  the 
Association  would  take  a  little  more  interest  in  the  publications 
of  our  Bureau,  purchase  them,  purchase  those  that  we  have,  and 
enable  us  to  secure  the  funds  with  which  to  go  forward  with  our 
work. 

We  have,  during  the  past  year,  realized  the  practical  value  of 
our  work.  We  have  had  inquiries  from 'a  great  many  sources, 
so  that  the  information  that  we  Beem  to  be  getting  together,  all 
research  work,  seems  to  be  of  more  and  more  practical  value,  in 
view  of  the  increasing  international  relations — for  instance,  we 
have  had  an  inquiry  frpm  Czecko-Slovakia.  They  want  to  be  in 
touch  with  American  lawyers,  and  they  have  applied  to  us,  and 
they  are  going  to  bring  to  that  Bureau  a  knowledge  of  the  Czecko- 
Slovakia  conditions,  and  we  will  get  the  information  of  our  con- 
ditions to  them  through  our  Journal.  I  tliink  the  Association 
owes  it  to  itself,  as  well  as  to  this  Bureau,  to  take  a  little  more 
interest  in  our  work.  As  Secretary,  I  welcome  the  cooperation 
of  all  tlie  members,  and  I  hope  that,  during  the  coming  year,  I 
may  hear  more  from  the  members  of  the  Association,  and  that 
they  will  take  a  greater  interest  in  our  work. 


REPORTS  OF  SECTIONS.  37 


Judicial  Seetion: 


John  P.  Brificoe,  of  Maryland: 

This  Section  has  a  report,  and  I  want  to  sa;y  that  we  have  had 
a  very  successful  year^  and  an  unusually  large  attendance  of 
judges  at  this  time.  It  has  been  very  satisfactory  to  us.  If  you 
recall,  this  Section  was  added  and  made  a  part  of  the  American 
Bar  Association  at  Montreal  in  1913,  and  under  the  resolution 
that  was  adopted,  the  Conference  of  Judges  is  required  to  meet 
every  year,  just  prior  to  the  meeting  of  the  American  Bar  Asso- 
ciation. Unfortunately  for  our  Section,  we  have  a  very  short 
time.  The  judges  are  not  allowed  to  do  much  talking  during 
the  year,  and  when  they  get  thus  far  away  from  their  homes, 
as  I  am,  for  instance,  away  from  my  home  in  the  east,  we  like  to 
do  as  much  talking  as  we  can,  and  a  day  is  not  very  much  time 
for  it.  Unfortunately  our  Section  has  a  conflict  with  two  other 
sections,  the  Criminal  Ijaw  and  the  Bar  Delegates  Conference, 
which  meet  at  the  same  time.  The  object,  of  course,  of  this 
Section,  Mr.  Chairman,  is  probably  well  known.  It  was  estab- 
lished for  a  conference  of  judges,  and  a  discussion  and  inter- 
change of  ideas  as  to  their  duties,  and  the  responsibility  of  the 
judiciary.  All  federal  and  state  judges  of  record  who  are  mem- 
bers of  this  Association  are  members  of  this  Judicial  Section. 
We  have  had  a  very  pleasant  meeting.  Two  very  interesting 
papers  were  read — one  by  Justice  Wilbur  of  the  Supreme  Court 
of  California,'  another  by  Justice  Conrey  of  the  Court  of  Appeals 
of  Los  Angeles.  We  had  a  very  pleasant,  delightful  dinner.  We 
had  Chief  Justice  Taft,  I»rd  Shaw,  and  the  representative  of 
the  Bar  of  Franco — M.  Aubepin — ^also  our  former  Ambassador 
to  Great  Britain — Mr.  John  W.  Davis — and  Judge  Hunt.  I 
would  like  to  state  that  the  registry  of  judges  at  this  time  went 
up  as  high  as  130,    We  never  had  over  100  before  this. 

That  is  all  we  have  to  report,  except  that  during  the  year  we 
assisted  the  Committee  on  Uniform  Judicial  Procedure,  and  its 
representative,  Mr.  Shelton,  in  endeavoring  to  get  through  Con- 
gress the  bill  providing  for  making  new  rules  &r  the  United 
States  Courts,  some  of  which  were  spoken  of  by  our  Chief  Jus- 
tice this  morning  in  his  address.  We  had  the  pleasure  of  going 
to  Washington  with  Mr.  Shelton,  and  also  with  our  President, 


38  AMERICAN  BAR  ASSOCIATION. 

Mr.  Severance^  and  appearing  before  the  Goinmittee  on  Judiciary 
of  the  House  of  Bepresentatives,  and  also  of  the  Senate.  The 
adoption  of  those  rules  has  been  urged  by  the  Judicial  Section 
of  the  American  Bar  Association  since  it  has  been  in  existence 
practically.  There  seemed  to  be  some  objection,  both  in  the 
House  and  the  Senate,  and  both  adjourn  every  year  with  these 
resolutions  pending. 

I  had  a  very  pleasant  talk  with  Eepresentative  Volstead,  of 
Minnesota,  whom  I  suppose  you  all  recognize  as  the  father  of 
the  prohibition  laws.  He  is  very  anxious* to  get  a  favorable 
report.  This  Section  stands  ready,  Mr.  Chairman — ^and  this  is 
about  the  only  report  I  have  to  make — to  assist  the  main  body, 
the  parent  body,  the  American  Bar  Association,  in  any  way  we 
can,  at  any  time. 

The  Chairman: 

Gentlemen,  you  have  heard  the  report  of  the  Judicial  Section. 
What  is  your  pleasure  with  reference  to  it?  The  chair  will 
entertain  a  motion  that  it  be  received,  appproved  and  made  a 
part  of  the  proceedings. 

The  motion  was  made  and  carried. 

Section  of  Legal  Education : 

John  W.  Sanborn,  of  Minnesota: 

The  last  meeting  of  the  American  Bar  Association  adopted 
certain  standards  for  admission  to  the  Bar.  The  Section  of 
Legal  Education  was  directed  to  do  certain  things  with  regard 
to  those  standards.  The  most  important  work  was  to  call  a  con- 
ference of  the  bar  associations  of  the  country,  with  the  purpose 
of  asking  the  endorsement  of  those  standards. 

Immediately  following  the  meeting  at  Cincinnati,  the  Council 
of  Legal  Education  requested  the  Council  of  the  Conference  of 
Bar  Associations  to  call  a  special  meeting  of  that  Conference, 
to  be  held  in  Washington  during  the  winter,  for  the  purpose  of 
considering  the  recommendations  of  the  American  Bar  Associa- 
tion, with  reference  to  the  standards  of  admission  to  the  Bar. 
The  Council  of  Bar  Association  Delegates  agreed  to  take  the 


BBP0BT8  OF  SB0TI0N8.  39 

burden  of  this,  and  the  Conference  was  called^  and  a  joint  com- 
mittee of  the  two  Councils  was  entrusted  with  the  arrangement 
The  proceedings  of  the  Conference  have  been  published  ai^^ 
distributed  to  the  members  of  the  Bar  Association.  That  Con- 
ference endorsed  the  standards  adopted  by  the  American  Bar 
Association.  The  Council  on  Legal  Education  was  also  directed 
to  secure  the  direct  endorsement^  as  far  as  possible^  of  the  stand- 
ards by  the  various  state  bar  associations  of  the  country.  The 
matter  has  been  called  to  the  attenti(m  of  the  different  state  bar 
associations.  It  has  been  discussed  by  a  number  of  them.  Some 
of  them  have  endorsed  it^  some  have  left  it  over  for  further  dis- 
cussion^ and,  as  far  as  the  Council  is  now  advised,  no  bar  associa- 
tion has  refused  directly  to  endorse  these  standards. 

The  Council  was  further  directed  to  examine  the  law  schools 
of  the  country,  and  to  publish  a  list  of  the  law  schools  which  com- 
plied with  the  standards  adopted  by  the  American  Bar  Associa- 
tion, and  also  those  that  do  not.  ^That  examination  is  a  matter 
of  some  difficulty,  and  has  been  the  subject  of  careful  considera- 
tion by  the  Council.  The  law  schools  of  the  country  have  been 
asked  for  the  information  which  is  considered  necessary,  at  least 
in  a  preliminary  way,  to  make  such  a  classification,  and  the 
information  is  now  being  furnished  to  the  Council,  and  we  expect 
to  continue  with  that  work.  I  hope,  some  time  during  the  fall, 
at  least  to  announce  a  preliminary  list  as  to  the  classification  of 
the  law  schools. 

Since  the  Washington  Conference,  the  work  of  the  Section  has 
been  largely  administrative.  A  great  deal  more,  however,  has 
been  done  in  the  office  of  the  Council  than  has  been  done  here 
at  this  meeting,  for  instance.  The  report  asks  for  no  action  on 
the  part  of  the  Bar  Association,  and  I  move  that  it  be  received 
and  placed  on  file. 

The  motion  was  seconded  and  carried. 

Section  of  Patent,  Trademark  and  Copyright  Law : 

A.  C.  Paul,  of  Minnesota : 

There  are  two  matters  that  I  am  instructed,  by  the  Patent 
Section,  to  report  to  this  Association,  the  second  of  which  re- 
quires some  action  by  the  Association.    At  the  meeting  last  year 


40  AMERICAN  BAR  ASSOGIATIOK. 

at  Cincinnati^  the  Patent  Section  asked  the  American  Bar  Asso- 
ciation to  endorse  a  bill  that  was  then  pending  before  Congress 
for  the  reorganization,  to  a  certain  extent,  of  the  force  of  the 
Patent  Office,  and  some  increase  in  the  force,  and  increaBe  in 
salaries.  There  had  been  no  increase  in  salaries  of  the  Examiners 
of  the  Patent  Office  for  a  period  of  forty  years,  and  we  were  unable 
to  retain  the  skilled  men  in  the  office  on  the  salaries  that  were 
being  paid.  The  Association  endorsed  that  bill,  and  it  was  passed 
by  Congress  and  became  a  law  on  the  18th  of  February.  I  am 
very  sure  that  the  endorsement  of  that  bill  by  this  Association 
aided  very  .greatly  in  its  passage  by  Congress,  and  the  results  are 
all  that  we  hoped.  The  men  are  remaining  in  office  very  satisfac- 
torily, there  is  an  entirely  different  spirit  among  them,  the  work 
is  being  hurried  and  brought  up  to  date,  and  I  think  the 
Patent  Office  will  very  soon  be  in  very  satisfactory  shape  in  this 
respect. 

The  second  matter  is  this :  For  a  period  of  two  years  the  Pat- 
ent Section  has  been  working  on  a  revision  of  the  Federal  Trade- 
mark Law.  There  are,  at  the  present  time,  seven  federal  statutes 
relating  to  trademarks.  A  committee  was  appointed  at  the 
meeting  last  year,  to  draft  a  bill  for  fortifying  the  trademark 
law,  and  making  some  changes  therein.  It  is  not  the  purpose  of 
the  committee  to  make  any  drastic  changes  in  the  law.  The  bill 
prepared  by  the  committee  has  been  printed,  and  the  report  of 
the  committee  printed  and  distributed.  It  will  not  be  necessary 
for  me  to  do  more  than  call  attention  to  that  report.  Yesterday 
the  Patent  Section  adopted  the  report  of  the  committee,  and  the 
Section  now  reports  this  bill  to  the  Association,  and  asks  its  en- 
dorsement, so  that  the  same  may  be  presented  to  Congress. 

I  move,  Mr.  Chairman,  the  acceptance  of  the  report  and  the 
endorsement  of  this  bill  by  the  American  Bar  Association. 

The  motion  was  seconded  and  carried. 

National  Conference  of  Commissioners  on  Tlnif orm  State  Laws : 

Nathan  William  MacChesney,  of  Illinois: 
The  National  Conference  of  Commissioners  on  Uniform  State 
Laws,  as  you  know,  meets  for  the  six  days  preceding  the  meeting 


REP0BT8  OF  SECTIONS.  41 

of  the  American  Bar,  as  a  body  of  official  commissioners  ap- 
pointed by  the  governors  of  the  respective  states  under  statutory 
authority.  This  Conference,  held  in  San  Francisco,  has  been  one 
of  the  most  successful  in  the  thirty-two  years  of  the  history  of 
the  Conference,  in  results  in  securing  the  passage  of  approved 
acts. 

The  Conference  of  Commissioners  on  Uniform  State  Laws, 
as  most  of  you  know,  has  a  record  which  is  second  to  no  organi- 
zation in  the  country  in  constructive  achievement,  and  it  per- 
haps has  contributed  sis  much  to  the  reputation  of  the  American 
Bar  Association  for  constructive  work  in  the  field  of  law  as  anv 
organization  connected  with  it.  In  fact,  it  has  to  its  credit  399 
legislative  enactments  today,  which  are  the  law  in  various  states 
of  the  union,  three  of  which  acts  are  in  effect  in  California,  the 
most  notable  being  the  Negotiable  Instrument  Act.  The  Confer- 
ence this  year  has  to  present,  for  your  approval,  through  its 
President,  and,  as  such.  Chairman  of  the  Uniform  Law  Com- 
mittee of  the  American  Bar  Association,  four  acts  which  have 
been  discussed  in  a  detailed  way  usual  in  that  Conference.  We 
employ  expert  draughtsmen.  The  matter  is  discussed  year 
after  year,  until  the  act  comes  out  in  the  form  in  which  the 
Conference  is  ready  to  recommend  it  to  the  American  Bar  Asso- 
ciation, and  to  the  legislatures  of  the  country  for  adoption. 

I  therefore,  Mr.  Chairman,  beg  leave  to  present  the  following 
formal  report : 

To  the  American  Bar  Association: 

As  President  of  the  National  Conference  of  Commissioners  on  Uni- 
form State  Laws,  I  have  the  honor  to  report  that  the  following  acts 
have  been  approved  by  the  Conference  at  its  1922  meeting  and  recom- 
mended for  adoption  by  the  several  states: 
Uniform  Declaratory  Judgments  Act. 
Uniform  Illegitimacy  Act*. 
Uniform  State  Law  for  Aeronautics. 
Uniform  Fiduciaries  Act. 

I  ask  that  the  above-mentioned  acts  be  approved  by  the  American  Bar 
AsBociation  and  recommended  to  the  states  for  adoption.  Copies  of  the 
acts  as  approved  by  the  Conference  are  herewith  handed  to  the  Secretary 
of  the  Bar  Association. 

Respectfully  submitted, 
Nathan  William  MacChbsnby, 
Premdent,  National  Coriference  of  Com- 
migsioners  on  Uniform  State  Laws, 

I  move  that  the  above-mentioned  acts,  in  accordance  with 
cnstom,  be  approved  by  the  American  Bar  Association,  and 


42  AMERICAN  BAR  ASSOCIATION. 

recommended  to  the  various  legislatures  of  the  states  of  the 
union  for  adoption  by  them. 

The  motion  was  seconded  and  carried. 
Conference  of  Bar  Association  Delegates: 

■  ^ 

Clarence  N.  Gtoodwin,  of  Illinois: 

It  is  the  desire  of  the  retiring  Chairman  of  the  Conference 
to  report  to  the  American  Bar  Association  informally,  not  by  a 
written  report.  There  are  a  number  of  things  in  connection 
with  the  work  of  the  Conference  that  I  desire  to  call  to  the 
attention  of  the  American  Bar  Association.  You  are  not  all 
familiar  with  the  work  of  the  Conference,  and  so  I  will  say  that 
the  Conference  of  Bar  Association  Delegates  was  originally 
called  into  being  by  a  resolution  presented  by  the  Hon.  Elihu 
Root,  whose  absence  here  we  deplore,  and  passed  by  the  Ameri- 
can Bar  Association.  The  original  Conference  was  held  in  1915, 
and  has  been  followed  by  Conferences  each  year.  It  has  become 
an  organic  part  of  the  American  Bar  Association,  and  it  has  a 
two-fold  function. 

First,  to  collect  from  all  the  bar  associations  of  the  country 
such  suggestions  as  they  have  to  make,  regarding  a  betterment 
in  the  administration  of  justice,  better  conditions  in  the  Bar, 
and  after  considering  that,  to  report  their  conclusions  to  the 
American  Bar  Association,  and  to  the  local  associations. 

Its  second  function,  which  is  quite  as  important  as  the  first, 
is  to  receive  from  the  American  Bar  Association,  particularly, 
suggestions  which  it  deems  of  importance,  and  bring  them  to 
the  attention  of  the  local  bar  associations  of  the  country. 

Under  the  first  head  it  took  up  the  matter  of  legal  aid. 
After  considering  it,  it  brought  it  to  the  attention  of  the  Amer- 
ican Bar  Association  and  the  local  bar  associations,  with  the 
result  that  it  became  one  of  the  major  activities  of  the  American 
Bar  Association,  and  was  presented  to  the  meeting  in  St.  Louis. 
Again,  the  American  Bar  Association,  at  the  conclusion  of  the 
last  conference  held  in  Cincinnati,  asked  that  a  special  confer- 
ence be  called  in  Washington,  so  that  it  might  present,  at  that 
conference,  its  suggestions  and  position  with  reference  to  stand- 
ards of  legal  education.    That  conference  met  in  Washington  on 


HEP0RT8  OF  SECTIONS.  48 

• 

the  2dd  and  24th  of  February^  and^  in  addition  to  its  Chairman^ 
was  presided  over  by  the  Chief  Justice  of  the  United  States, 
William  G.  McAdoo,  John  W.  Davis^  and  Hampton  L.  Carson. 

The  Conference  was  attended  by  representatives  of  over  170 
bar  associations,  sending  660  delegates  and  alternates,  and  at 
the  conclusion  of  two  days,  by  an  overwhelming  vote,  in  the  face 
of  what  had  been  most  decided,  but  what  continued  to  be  dwind- 
ling opposition,  the  recommendations  of  the  American  Bar 
Association  were  adopted. 

The  annual  meeting  of  the  Conference  was  held  in  this  halL 
For  some  time  the  Conference  had  been  known  as  the  National 
Conference  of  Bar  Association  Delegates.  By  an  amendment 
that  was  shortened  to  the  National  Conference  of  Bar  Associa- 
tions. At  the  same  meeting,  owing  to  the  absence  of  Elihu  Boot, 
we  found  that  our  By-Laws  prevented  him  from  continuing  as  a 
member  of  the  Council,  because  he  had  not  been  certified  as  a 
delegate.  A  By-Law  was  adopted,  which  provides  that  officers 
during  their  terms  need  not  be  appointed  as  delegates.  There  was 
also  presented  at  that  meeting  a  report  on  state  bar  associations, 
the  progress  made  in  various  states  towards  the  creation  of  ma- 
chinery for  Bar  government.  We  also  listened  to  a  most  delightful 
address  on  the  organization  and  government  of  the  Bar  of  Paris, 
by  Henry  Aubepin.  We  also  had  the  pleasure  in  the  afternoon  of 
listening  to  the  President  of  the  American  Bar  Association,  on  the 
subject  of  a  better  and  more  coordinated  effort,  on  the  part  of  the 
bar  associations  of  the  country,  toward  bringing  them  into  closer 
contact,  and  making  them  a  more  efficient  instrument  for  the 
better  administration  of  justice. 

The  result  of  the  address,  and  the  discussion  that  followed  it, 
was  the  resolution  for  the  appointment  of  a  committee  to  investi- 
gate by  what  means  this  coordination  can  be  brought  about,  and 
the  feasibility  of  the  federation  of  the  bar  associations  of  the 
country.  This  may  be  said,  however,  that  the  American  Bar 
Association,  through  the  Conference,  has  brought  into  close 
association  with  itself  all  the  bar  associations  of  the  country, 
and  is  exercising,  I  believe,  for  the  first  time,  decided  and  satis- 
factory leadership. 

There  were  some  other  resolutions  adopted,  one  affirming  the 
position  taken  in  regard  to  th^  unlawful  practice  of  the  law,  a^d 


44  AMERICAN   BAR   ASSOCIATION. 

approving  what  had  been  done  by  the  Bar  Association  of  Cali- 
fornia. With  your  permission,  Mr.  Chairman,  I  will  embody 
the  other  resolutions  in  a  formal  report  to  the  Bar  Association. 
In  conclusion,  I  would  like  to  say  that,  at  the  evening  session, 
we  had  the  privilege  of  listening  to  Mr.  McAdoo  address  the 
Conference  on  the  subject  of  the  duty  of  the  lawyer  to  the  nation, 
and  also  had  the  privilege  of  listening  to  a  most  delightful 
address  by  the  Chief  Justice  of  the  United  States,  whose  interest 
in  the  Bar  is  a  matter  of  gratification  to  all  of  the  members  of 
the  American  Bar  Association,  and  to  the  Bar  of  the  country. 

The  Chairman : 

The  ordinary  course  will  be  taken  with  reference  to  this 
report  of  Judge  Goodwin  for  the  Conference  of  Bar  Delegates, 
namely,  that  it  be  approved,  and  deemed  part  of  the  proceedings 
in  a  written  form  which  he  is  to  supply,  unless  there  be  an 
objection.    There  being  none,  that  course  will  be  followed. 

Committee  on  ProfesBional  Ethics  and  OrievanceB: 

Thomas  Francis  Howe,  of  Illinois : 

The  report  of  the  committee  has  already  been  printed.  Among 
other  things,  the  report  calls  attention  to  the  abuses  that  have 
arisen  under  the  system  of  advertising  by  so-called  patent  attor- 
neys, many  of  whom  are  laymen  admitted  to  practice  in  the 
Patent  Office  as  attorneys  in  fact.  The  committee  has  recom- 
mended the  adoption  of  the  following  resolution : 

Resolved,  That  the  Association  requests  the  Commissioner  of  Patents 
to  include  in  the  regulations  for  the  conduct  of  those  registering  as 
attorneys  in  the  Patent  OflSce,  a  rule  prohibitng  the  solicitation  of  busi- 
ness, so  long  as  they  are  designated  or  allowed  to  describe  themselves  as 
patent  attorneys. 

I  move  the  adoption  of  that  resolution. 
The  motion  was  seconded. 

« 

The  Chairman : 

Mr.  Howe,  would  you  be  good  enough  to  explain,  perhaps  a 
little  more  fully,  just  what  that  recommendation  portends? 

Mr.  Howe: 

Under  a  recently  enacted  statute,  the  Commissioner  of  Pat- 
ents is  given  authority  to  regulate  the  conduct  of  those  laymen 


BBP0BT8  OF  C0MMITIBB3.  45 

and  attorneys  who  are  registered  as  patent  attorneys  in  the 
patent  office.  The  Commissioner^  at  some  one^s  suggestion^ 
asked  the  President  of  this  Association,  to  appoint  a  committee 
to  assist  him  in  drafting  rules  governing  the  conduct  of  these 
so-called  patent  attorneys.  I  do  not  know  just  how  far  that 
committee  worked  and  assisted  him^  but  the  rules  have  been  pre- 
pared, and  instead  of  adopting  a  rule  prohibiting  solicitation  of 
business  by  these  attorneys,  the  rule  was  adopted  that  all  adver- 
tisements which  these  attorneys  wished  to  insert,  should  be 
prepared  and  submitted  to  the  Commissioner  or  his  appointees, 
for  that  purpose,  before  publication.  I  suppose  you  are  all 
familiar  with  the  many  evils  that  have  resulted  from  the  publi- 
cation of  many  misleading  advertisements  by  these  so-called 
patent  attorneys  in  the  press,  throughout  the  country,  particu- 
larly in  the  rural  districts,  and  your  committee  has  thought 
it  was  advisable  to  strengthen,  the  hands  of  the  Commissioner  by 
advising  him  officially,  if  he  so  desired,  as  to  what  the  American 
Bar  Association's  attitude  towards  the  matter  was. 

The  Chairman : 

Members  of  the  Association,  you  have  heard  the  recommen- 
dations of  the  Committee  on  Ethics  and  Grievances.  What  is 
your  pleasure  ? 

On  motion  duly  seconded,  the  resolution  was  adopted. 

Mr.  Howe: 

I  now  wish  to  offer  a  further  resolution,  on  behalf  of  the 
committee.  The  committee  recommends  that  the  following  reso- 
lution be  adopted : 

Resolved,  That  a  special  committee  be  appointed  by  the  Prettdent 
to  investigate  and  determine  by  what  rights,  if  any,  laymen  who  are 
registered  as  attorneys  in  fact  in  the  Patent  Office,  and  in  the  office 
of  the  Commissioner  of  Internal  Revenue,  use  the  words  "patent  at- 
torney'' or  ^^  income  tax  attorney,"  in  designating  their  wonc,  and  to 
recommend  to  the  Association  such  action  as  may  bring  about  the  dis- 
continuance of  these  misleading  designations. 

A.  C.  Paul,  of  Minnesota : 

Speaking  for  myself,  and  not  for  the  Patent  Section,  I  desire 
to  say  that  I  think  the  resolution  offered  by  Mr.  Howe,  ought 
to  go  a  little  further.    If  a  committee  is  appointed  to  investigate 


46  AMERICAN  BAH  ASSOOIATION. 

the  matters  referred  to^  I  think  it  should  not  be  limited  simply  to 
the  question  of  the  use  by  practitioners  before  the  Patent  OflSce 
of  the  words  *'  Patent  Attorney/*  I  took  this  matter  up  with  the 
Commissioner  of  Patents  a  few  weeks  ago^  and  he  expressed  his 
hearty  approval  of  this  resolution  of  the  committee,  but  he 
suggested  that  it  did  not  go  far  enough  in  the  matter  of  investi- 
gation, and  if  it  was  limited  to  simply  the  use  of  these  words,  it 
probably  would  not  accomplish  very  much.  I  have  talked  with 
Mr.  Howe  about  the  matter  this  morning,  and  I  wanted  to  make 
a  motion  to  amend  this  resolution,  so  that  it  will  give  the  com- 
mittee, if  it  is  appointed,  the  power  to  go  somewhat  further  than 
is  contemplated  under  the  present  resolution,  and  I  have  pre- 
pared an  amendment,  which  I  will  ask  the  Secretary  to  read. 
I  have  changed  it  a  little,  Mr.  Howe,  but  I  think  in  a  manner 
that  will  be  acceptable  to  you. 

The  Secretary : 

The  amendment  is: 

Add  after  the  word  "  work  "  in  the  second  resolution,  the  following : 
"To  investigate  the  conditions  in  the  Patent  Office,  and  in  the  office 
of  the  Commissioner  of  Internal  Revenue,  with  special  reference  to  the 
practice  of  the  so-called  attorneys,"  and  add,  at  the  end  of  the  resolution, 
the  words,  "and  otherwise  improve  the  practice  before  these  depart- 
ments." 

So  that  the  resolution  shall  read  as  follows : 

Resolved,  That  a  special  committee  be  appointed  by  the  President 
to  investigate  and  determine  by  what  right,  if  any,  laymen  who  are 
registered  as  attorneys  in  fact  in  the  Patent  Office,  and  in  the  office 
of  the  Conunissioner  of  Internal  Revenue,  use  the  words  "patent  at- 
torney," or  "income  tax  attorney,"  in  designating  their  woA.  and  to 
investigate  conditions  in  the  Patent  Office  and  in  the  office  of  the  Com- 
miasioner  of  Internal  Revenue,  with  special  reference  to  the  practice 
of  the  so-called  attorneys,  and  to  recommend  to  the  Association  such 
action  as  may  bring  about  the  discontinuance  of  these  misleading  desig- 
nations, and  otherwise  improve  the  practice  before  these  departments. 

The  Chairman: 

The  question  is  upon  the  amendment  offered  by  Mr.  Paul,  of 
Minnesota. 

Mr.  Howe: 

On  behalf  of  the  committee,  I  wish  to  say  that  we  are  glad 
to  accept  the  amendment. 


BBPOBTB  OF  OOMMIITEES.  47 

The  Chairman : 

The  committee  accepts  the  amendment,  and  therefore  the 
motion  is  upon  the  resolution  of  the  conamittee  of  which  Mr. 
Howe  is  Chairman,  as  amended  by  Mr.  Paul,  with  the  approval 
of  the  committee. 

Julius  Henry  Cohen,  of  New  York : 

Mr.  Brown  suggests  that  it  is  unnecessary  for  me  to  say  any- 
thing, because  it  is  going  to  be  passed  anyway,  but  I  would  like  to 
suggest  that  this  is  a  further  evolution  of  the  restriction  of  the 
practice  of  law  by  laymen.  The  Treasury  Department  recently 
put  in  effect  regulations  as  a  result  of  action  taken  by  the 
Conference  of  Bar  Association  Delegates,  which  regulates  the 
conduct  of  laymen  before  the  Treasury  Department,  so  as  to 
prevent  soliciting  and  advertising  for  business,  and  this  action 
with  reference  to  the*  Patent  Office  is  in  the  same  direction.  It 
is  important  for  us  to  connect  these  movements  in  our  own 
minds,  so  that  we  may  understand  the  tendency. 

Charles  Henry  Butler,  of  District  of  Columbia: 
The  Committee  on  Internal  Revenue,  of  which  I  happen  to 
be  the  Chairman,  will  make  a  report  tomorrow,  and  has  con- 
sidered this  question  of  the  relation' of  attorneys  practicing  in 
the  Treasury  Department,  and  their  obligations  to  the  depart- 
ment, under  the  regulations  which  Mr.  Cohen  says  have  been 
already  promulgated,  and  the  rights  of  attorneys  thereunder, 
which  are  matters  that  that  committee  is  already  considering,  and 
it  seems  to  me,  inasmuch  as  the  Treasury  Department  has  issued 
regulations,  and  is  enforcing  them,  that  it  might  be  well  to  sep- 
arate this  motion,  and  to  keep  it  separately  in  the  Committee 
on  Patents,  and  the  Committee  on  Internal  Revenue,  so  far  as 
it  does  not  entrench  upon  the  duties  of  the  Committee  on  Un- 
lawful Practice.  ^ 

Now,  in  regard  to  the  Treasury  Department,  I  say  that  the 
Commissioner  there  has  acted  in  a  very  broad  manner,  and  has 
formulated  and  promulgated  regulations  which  are  very  far 
reaching,  and  which  deal  with  this  question  of  advertising 
cards  and  solicitation.  And  what  we  are  more  anxious  to  do 
than  anything  else  at  the  present  time,  is  to  see  that  those 


48  AMEBIOAN  BAH  ASSOCIATION. 

attorneys  at  law  who  are  admitted  to  practice  in  the  Treasury 
Department^  while  they  have  to  assume  all  these  obligations, 
and  are  under  all  the  pains  an.d  penalties  contained  in  those 
regulations,  that  they  shall  have  some  of  the  rights  of  attorneys 
also.  In  that  respect  our  committee  has  had  a  number  of 
sessions  with  the  Commissioner,  the  Secretary  of  the  Treasury 
and  the  assistants  of  the  Secretary  on  this  very  subject,  so  this 
matter  is  now  being  covered,  and  has  already  been  covered  in 
one  respect,  by  the  committee  of  which  Mr.  Cohen  speaks,  and 
has  been  covered  by  this  other  committee. 

Bome  G.  Brown,  of  Minnesota: 

May  I  suggest  that  this  is  a  resolution  only  giving  authority 
to  a  committee  to  investigate  and  report.  If  they  find  that  they 
need  authority  beyond  the  scope  which  they  are  given,  on 
account  of  meeting  with  other  conditions,  then  they  can  be  given 
that  authority.  It  seems  to  me  the  resolution  ought  to  stand 
the  way  it  is. 

John  B.  Corliss,  of  Michigan : 

It  seems  to  me  that  this  subject  is  already  being  covered  by 
two  of  our  standing  committees,  the  one  on  patents,  and  the 
other  on  internal  revenue,  and  that  another  additional  com- 
mittee is  unnecessary.  The  subject-matter  belongs  to  those  two 
committees,  and  the  recommendation,  it  seems  to  me,  should  be 
referred  to  them  for  action.  It  is  unnecessary  to  multiply  the 
number  of  committees  when  you  have  standing  committees  upon 
the  subject-matter  under  discussion. 

The  Chairman: 

Is  there  any  further  debate  upon  the  question  ? 

Mr.  Howe: 

I  might  say^that  the  reason  that  this  question  is  raised  by 
the  Committee  on  Professional  Ethics  and  Grievances  is  because 
of  the  large  number  of  complaints  received  by  the  committee 
throughout  the  country  during  the  past  year.  Those  complaints 
were  against  men  who  were  using  letterheads,  designating  them- 
selves as  patent  attorneys  or  income  tax  attorneys,  and  your 
committee  was  obliged,  in  almost  every  case,  to  respond  to  the 


REPORTS  OF   COMMITTBES.  49 

person  making  the  complaint,  that  we  could  not  take  any  action 
on  the  matter,  because  the  person  complained  of  was  not  an 
attomey-at-law.  Hence,  we  undertook  the  investigation  of  the 
question,  and  made  this  recommendation. 

A.  C.  Paul,  of  Minnesota: 

The  Patent  Section,  I  am  sure,  does  not  want  this  matter 
referred  to  it.  The  complaints  which  Colonel  Howe  referred  to 
were  submitted  to  the  Patent  Section.  We  think  that  the 
Committee  on  Ethics  and  Grievances  can  handle  this  matter 
much  better  than  the  Patent  Section,  and  we  hope  that  it  will 
remain  there. 

Barnett  E.  Marks,  of  Arizona : 

I  should  like  to  see  the  motion  or  the  amendment  broadened 
just  a  little  bit  to  include  the  words,  "  land  attorney."  Coming 
from  a  public  land  state,  as  I  do,  we  are  confronted  with  that 
evil,  in  addition  to  the  others  already  mentioned.  If  the 
amendment  could  be  broadened,  so  as  to  apply  to  the  Com- 
missioner of  the  Land  Department  as  well,  so  that  he  might 
also  promulgate  regulations  touching  the  practice  by  these  lay- 
men, as  land  attorneys,  who  so  advertise  themselves,  I  think 
it  would  be  a  good  thing. 

The  Chairman: 

You  have  heard  the  various  suggestions  made  by  Mr.  Butler, 
Mr.  Oorfes,  and  Mr.  Marks,  and  the.  remarks  of  the  Chair- 
man of  the  committee  which  is  involved.  Are  you  now  ready 
for  the  question?  The  question  is  upon  the  adoption  of  the 
resolution  offered  by  the  Committee  on  Ethics  and  Grievances, 
as  amended  by  Mr.  Paul,  the  amendment  being  accepted  by 
the  committee.  All  those  in  favor  will  please  say,  "  Aye." 
Opposed,  "  No."    The  resolution,  as  amended,  is  adopted. 

Mr.  Howe : 

Mr.  Chairman,  during  the  year  there  was  appointed  a  sub- 
committee of  the  Executive  Committee,  to  prepare  a  revision 
of  the  By-Laws  pertaining  to  the  duty  of  the  Committee  on 
Professional  Ethics  and  Grievances.  That  sub-committee  was 
composed  of  Judge  McClellan  of  Alabama,  Mr.  Richards  of 


50  AMERIOAN   BAR  ASSOCIATION. 

Chicago^  and  myself.  The  sub-committee  prepared  a  revision  of 
the  By-Laws,  which  was  later  referred  to  the  committee,  and  the 
committee  revised  it  in  some  slight  particulars.  It  has  been 
published,  and  the  committee  now  recommends  the  adoption  of 
an  amendment  to  By-Law  VII  by  the  substitution  for  the  last 
paragraph  thereof,  of  the  following: 

1.  The  Committee  on  Professional  Ethics  and  Grievances  shall  aasiflt 
the  state  and  local  bar  associations  in  all  matters  co'nceming  their 
activities,  in  respect  to  the  ethics  of  the  profession,  collect  and  com- 
municate to  the  Association  information  concerning  such  activities,  and 
from  time  to  time  make  recommendations  on  the  subject  to  the  Asso- 
ciation. 

2.  Be  authorized  in  its  discretion  to  express  its  opinion  concerning 
proper  professional  conduct,  and,  particularly  concerning  the  applica- 
tion of  the  tenets  of  ethics  thereto,  when  consulted  by  officers  or  com- 
mittees of  state  or  local  bar  associations.  Such  expression  of  opinion 
flihali  only  be  made  after  consideration  thereof  at  a  meetixig  of  the  com- 
mittee, and  approval  by  at  least  a  majority  of  the  committee. 

3.  Be  authorized  to  hear,  in  meetings  of  the  committee,  on  its  own 
motion,  or  upon  a  complaint  preferred,  charges  of  professional  miscon- 
duct against  any  member  of  the  Association.  As  the  result  of  such 
hearing,  it  may  recommend  to  the  executive  committee,  the  forfeiture 
of  the  right  of  membership  by  any  such  member.  All  such  recommenda- 
tions shall  be  accompanied  by  a  transcript  of  the  evidence,  and  shall 
only  be  made  after  the  accused  member  has  been  given  notice  of  the 
nature  of  the  complaint,  cmd  after  reasonable  opportunity  has  been 
accorded  him  or  her  to  submit  evidence  cmd  argument  in  defense. 

4.  Forfeiture  of  the  membership  of  any  member  as  hereinbefore  pro- 
vided, shall  become  effective  when  approved  by  a  majority  of  all  of  the 
members  of  the  executive  committee,  and  all  interest  in  the  property 
of  the  Association  of  the  person  whose  membership  is  so  forfeited  shall 
ipso  facto  vest  in  the  Association.  The  membership  in  the  Association, 
and  all  interests  in  the  property  of  the  Association  of  a  member  shall 
ipso  facto  cease  upon  his  disbarment,  or  a  final  judgment  of  conviction 
of  a  felony. 

5.  Whenever  the  specific  charges  of  unprofessional  conduct  shall  be 
made  against  any  member  of  the  Bar,  whether  or  not  a  member  of  this 
Association,  and  the  chairman  of  the  Committee  on  Professional  Ethics 
and  Grievances  is  of  the  opinion  that  the  case  is  such  as  requires  in- 
vestigation, or  prosecution  in  the  courts,  the  same  shall  be  referred 
by  the  chairman  to  the  appropriate  state  or  local  bar  association  where 
such  attorney  resides,  and  it  shall  be  the  duty  of  the  Chairman  to  co- 
operate with  the  local  Vice-President  of  this  Association  for  the  state 
where  such  attorney  resides,  to  urge  the  appropriate  officers  or  com- 
mittees of  the  state  or  local  bar  association  to  institute  inquiries  into  the 
merits  of  the  complaint,  and  to  take  such  action  thereon  as  may  be 
appropriate,  with  the  view  to  the  vindication  of  lawyers  unjustly  accused, 
and  the  discipline,  by  the  appropriate  tribunal,  of  lawyers  guilty  of 
unprofessional  conduct. 

6.  The  committee,  with  the  approval  of  the  executive  committee,  shall 
formulate  rules  not  inconsistent  with  this  by-law,  to  give  effect  to  the 
foregoing  provisions,  which  rules  shall  be  published  ii^  the  aPQual 
reports  of  the  Association. 


BBP0RT8  OF  COMMITTEES.  61 

I  move  the  adoption  of  the  amendment. 

The  motion  was  seconded  and  carried. 
(See  Report,  page  285,) 

The  Chairman : 

The  President  of  the  Association  has  an  interesting  telegram, 
and  is  going  to  resume  the  Chair. 

The  President: 

I  am  very  grateful,  indeed,  Mr.  Terry,  for  your  guidance  in 
presiding  this  afternoon  when  I  was  unable  to  be  present.  I  have 
received,  since  the  adjournment  this  noon,  a  most  interesting 
telegram,  which  is  additional  evidence  of  the  widespread  feeling 
in  this  country  concerning  the  subject-matter  which  was  last 
acted  upon  at  the  morning  session.  This  telegram  is  from  the 
Attomey-Gteneral  of  the  United  States,  and  I  will  read  it.  It  is 
addressed  to  me  as  President  of  the  Bar  Association,  and  sent 
from  Washington  this  morning. 

Washinoton,  D.  C,  August  10,  1922. 
C.  A.  Severance,  Esq.,  President,  American  Bar  Association,  San  Fran- 
CISCO,  CaL 

Representatives  of  the  Bar  exercise  a  great  influence  in  ehaping  public 
opinion,  and  I  trust  consideration  and  action  will  be  given  to  the  follow- 
ing question  which  I  consider  a  great  national  interest. 

The  preservation  of  life,  hberty  and  property  requires  that  the  Ameri- 
can people  be  retaught  the  fundamental  principles  of  government 
as  established  by  the  fathers.  When  there  is  a  neglect  of  duty  or  lack  of 
courage  on  the  part  of  American  citizens  which  leads  to  failure  to  adhere 
to  and  to  teach  the  doctrines  of  sound  government,  the  perpetuity  of 
our  institutions  is  menaced  and  the  sacred  rights  of  those  who  live 
now  and  who  will  live  after  us  are  endangered.  Too  many  people  in  this 
coimtry  have  been  listening  to  the  teachings  of  foreign  doctrines  by 
imsound  advocates  who  have  left  countries  which  their  doctrines  have 
destroyed 

I  urge  that  steps  be  taken  before  you  adjourn  to  the  end  that  in  every 
state,  county  and  municipality,  organizations  be  perfected  to  teach  the 
principles  of  and  the  necessity  for  sound  government.  Teachers  and 
preachers,  both  men  and  women,  will  follow  up  the  work  if  you  lead.  A 
movement  of  this  character  is  as  essential  in  time  of  peace  as  in  time  of 
war  and  is  needed  now  as  it  never  was  before.  I  believe  that  the  great 
majority  of  the  press  will  aid  and  that  that  portion  of  the  press  which 
caters  to  and  preaches  and  advocates  unsound  doctrines  will  be  disre- 
garded by  the  American  people  who  place  citizenship  and  sound  govern- 
ment above  self-constituted  authority. 

Harrt  M.  Daughbrty, 

Attorney  General  of  the  United  States^ 


52  AMERICAN  BAB  ABSOOIATION. 

The  President: 

Unless  there  is  objection,  I  will  take  the  liberty  of  sending  a 
telegram  to  the  Attorney-General,  in  response  to  this  message, 
saying  to  him  that  the  very  action  he  proposes  was  taken  this 
morning  by  unanimous  vote  of  the  Association. 

Committee  on  Commerce,  Trade  and  Commercial  Law : 

W.  H.  H.  Piatt,  of  Missouri : 

This  committee's  report  reaches  some  34  pages  in  printed  form, 
and  has  been  handed  out  for  distribution.  It  deals  with  matters 
that  have  been  before  the  committee  for  some  three  years.  In 
it  is  found  three  acts  which  the  committee  has  drafted  with  the 
assistance  of  a  special  draughtsman.  Professor  Williston,  of  Har- 
vard University,  notably  the  National  Sales  Act,  an  act  for 
arbitration, — ^a  national  arbitration  act,  and  an  act  authorizing 
the  making  of  treaties  authorizing  arbitration,  and  also  an  act 
covering  uniform  state  arbitration,  which  was  drawn  by  the  com- 
mittee under  an  instruction  from  a  previous  session  of  this  organi- 
zation, in  connection  with  the  federal  act.  A  request  will  be 
made  upon  this  organization  to  have  this  latter  act  referred  to 
the  Commissioners  on  Uniform  Laws  for  their  consideration  in 
the  future. 

The  report  is  summarized  in  13  recommendations,  and,  as  has 
been  the  practice  indulged  in,  in  regard  to  this  committee,  by  this 
organization  in  the  pai?t,  those  recommendations  have  been  put  in 
the  form  of  recommendations  for  resolution,  and  unless  there  is 
an  objection,  it  will  be  presented  as  heretofore,  the  entire  number 
of  recommendations  presented,  and  then  made  as  one  resolution, 
authorizing  all  of  the  recommendations  at  one  time.  If  there  is 
objection  to  that  procedure,  then  we,  of  course,  will  be  under  the 
necessity,  Mr.  Chairman,  of  taking  up  these  13  recommendations 
separately. 

The  President  i 

Is  there  any  objection?  The  Chair  hears  none.  You  may 
proceed. 

W.  H.  H.  Piatt: 

And  I  may  say,  if  the  Chair  please,  that  in  the  Sales  Act,  the 
committee  discovered,  since  the  printing  of  the  report,  there 


BBP0BT8  OF  GOMKITTBBS.  53 

were  five  necessary  words  that  had  been  omitted  from  the  conclu- 
sion of  Section  55,  which  the  committee  has  taken  the  liberty  of 
writing  in,  and  will  turn  in  as  the  corrected  report.  In  para- 
graph 10,  the  committee  has  written  a  recommendation  to  the 
commissioners  which  will  be  rfead  here,  instead  of  the  printed 
•recommendation  covering  that  resolution,  to- wit,  the  Uniform  Act 
on  Arbitration  for  States.  Under  the  instructions,  as  given  by  the 
chairman,  I  move  the  adoption  of  the  report  and  the  13  recom- 
mendations made  as  resolutions  on  the  part  of  the  committee,  and 
the  acceptance  of  the  report  and  its  approval. 

(The  10th  recommendation  to  which  Mr.  Piatt  referred  reads 
as  follows : 

That  a  resolution  be  adopted  referring  to  the  National  Conference  of 
Commissioners  on  Uniform  State  Laws  for  its  consideration,  the  bill 
herewith  submitted  by  your  committee  as  to  a  Uniform  State  Arbitra- 
tion Act.    (Appendix  C.)) 

The  motion  was  seconded. 

The  President : 

You  have  heard  the  motion,  that  the  13  recommendations  pro- 
posed by  the  Committee  on  Commerce,  Trade  and  Commercial 
Law  be  approved  and  adopted. 

William  V.  Booker,  of  Indiana: 

May  I  inquire  what  subjects  are  embraced  in  the  matter  of 
arbitration^  as  proposed  by  Mr.  Piatt's  committee? 

W.  H.  H.  Piatt : 

Commercial  arbitration  was  the  subject  that  the  Committee 
on  Commerce,  Trade  and  Commercial  Law  first  took  under  con- 
sideration in  conformity  with  the  resolution  of  this  body  passed 
three  years  ago.  That  was  referred  to  the  Commission,  that 
particular  bill  that  you  have  inquired  about. 

The  President : 

Are  there  any  further  inquires  or  remarks?  If  not,  all  in 
favor  of  the  motion  as  made  by  Mr.  Piatt,  will  say  *'  Aye '';  op- 
posed ^  No.*'    The  motion  is  carried. 

{8e$  Report,  page  288,) 


54  AKSRICAK  BAB  ASSOOIATION. 

Committee  on  Inteniational  Law: 

James  Brown  Scott,  of  the  District  of  Columbia: 
The  Committee  on  International  Law  of  the  American  Bar 
Association  has  presented  its  report.  It  has  been  printed  and 
distributed  and  hence  it  is  not  necessary  to  take  up  your  time  by 
an  attempt  to  read  it  at  this  late  hour.  I  would  like  to  say  that 
the  method  of  preparing  the  report  has  been  somewhat  different 
this  year  from  the  times  past.  The  committee  has  remembered 
that  the  American  Ba.r  Association  is  a  body  composed  of  lawyers, 
and,  therefore,  that  the  international  events  to  be  discussed 
would  better  be  those  of  a  legal  nature,  and  that  the  international 
events  or  the  international  agreements  should  be  those  to  which 
the  United  States  was  a  party.  Therefore,  the  report  consists  of 
four  parts ;  a  discussion  of  the  International  Court  of  Justice,  and 
the  last  steps  taken  to  complete  it;  second,  a  discussion  of  the 
treaties  which  have  recently  been  concluded  between  the  United 
States  and  Germany,  putting  an  end  to  the  state  of  war  between 
those  two  countries;  in  the  next  place,  a  consideration  of  the  Four 
Power  Treaty,  and  the  procedure  and  results  of  the  Washington 
Conference  on  the  Limitation  of  Armaments;  and,  lastly  a  mere 
statement  of  the  meeting  of  delegates  of  Peru  and  Chile,  in  the 
City  of  Washington,  under  an  invitation  of  the  President,  in  order 
that,  by  a  free  discussion  on  neutral  soil,  the  long-standing  diflB- 
culty  between  those  two  coimtries  respecting  the  possession  of  a 
strip  of  territory  might  be  settled.  The  committee,  however,  felt 
that  in  addition  to  a  report  of  an  expository  nature,  it  might  make 
one  recommendation,  and  that  recommendation  is  of  a  very  gen- 
eral nature,  namely,  the  expression  of  a  hope  that  some  way  might 
be  found  by  which  the  government  of  the  United  States  might 
participate  in  the  proceedings  and  in  the  benefits  of  the  Inter- 
national Court  of  Justice  which  has  recently  been  established, 
and  which  is  now  in  session  in  The  Hague. 

Permit  me  to  recall  the  fact  that  an  honored  President  of  this 
Association,  a  past  President  of  this  Association,  when  Secre- 
tary of  State  of  the  United  States,  Mr.  Elihu  Boot,  instructed 
the  American  delegation  to  the  second  Hague  Peace  Conference 
to  propose  a  permanent  court  of  international  justice,  based  upon 
the  nature  and  proceedings  of  the  Supreme  Court  of  the  United 


BBP0BT8  OF   00HHITTSB8.  56 

States.  A  project  to  that  effect  was  proposed,  and  it  was  unani- 
mously approved,  the  difficulty,  at  that  time,  being  the  method  of 
selecting  the  judges.  Through  the  kindly  intervention  of  the 
same  gentleman  who  proposed  the  formation  of  such  a  tribunal, 
Mr.  Elihu  Root,  meeting  with  the  committee  of  jurists  at  The 
Hague  in  1920,  a  method  was  selected  and  was  devised  of  the 
appointment  of  the  judges  which  met  with  the  unanimous  ap- 
proval of  the  nations,  with  the  result  that  the  project  of  1907 
was  completed  by  appropriate  articles  relating  to  the  appointment 
of  the  judges,  and  that  august  tribunal  has  been  in  session  at 
The  Hague,  the  first  true  international  tribunal.  It  met  on  the 
15th  day  of  June  of  the  present  year. 

I  will  ask  that  the  resolution  which  I  have  spoken  of  and  ven- 
tured to  present  on  behalf  of  the  committee  be  submitted  to  and 
adopted  by  the  Association  in  the  hope  that  a  way  be  found  by 
which  the  government  of  the  United  States  may  participate  in 
the  proceedings  and  the  benefits  of  the  International  Court  of 
Justice. 

The  President : 

The  Secretary  will  read  this  resolution  of  Dr.  Scott's  that  is 
presented  on  behalf  of  the  committee. 

The  Secretary  (reading) : 

The  American  Bar  Association,  at  its  45th  annual  meeting,  held  in  the 
City  of  San  Francisco,  on  the  10th  day  of  August,  1922,  expresses  the 
hope  that  a  way  may  be  found  by  which  the  government  of  the  United 
States  may  avail  itself  of  the  permanent  Court  of  International  Justice. 

The  President: 

I  imderstand  you  move  this  resolution  ? 

Mr.  Scott : 

I  so  move,  Mr.  President. 

The  motion  was  seconded  and  carried. 

C.  N.  Goodwin,  of  Illinois: 

I  rise  to  make  a  suggestion  in  the  interest,  if  not  of  peace, 
of  a  good-feeling  on  the  part  of  the  American  Bar  Association 
and  all  its  members,  concerning  the  specific  proposal  by  Mr. 
Scott  I  think  we  are  all  agreeid  concerning  our  commenda- 
tion for  the  industry  of  this  committee,  and  the  very  admir- 


56  AMERICAN   BAB  ASSOCIATION. 

able  manner  in  which  it  has  presented  its  report.  I  think 
we  are  all  as  one  on  that.  But  there  is^  in  this  report^  a  statement 
that  is  highly  objectionable  to  many  delegates  who  are  here,  and 
my  request  is  going  to  be  on  the  part  of  Mr.  Scott  to  withdraw 
an  immaterial  part  of  his  report,  and  prevent  the  necessity  of  a 
motion  on  the  floor  of  this  meeting. 

On  page  53  of  the  report,  the  committee — I  mention  the 
fact  that  four  of  the  five  members  of  the  committee  have  signed 
the  report — ^refers  to  the  presentation  of  the  Treaties  of  Ver- 
sailles to  the  Senate  of  the  United  States,  and  the  controversy 
which  arose  in  the  Senate,  in  regard  to  those  treaties.  It  con- 
tinues: ''A  situation  had  thus  arisen,  foreseen  in  the  course 
of  the  Federal  Convention  by  Mr.  Madison,  to  which  is  due,  in 
large  measure,  the  placing  of  government  under  the  present 
constitution  of  ^  the  states  in  their  united  capacity,'  to  use  his 
own  happy  phrase.  The  President,  he  said,  would  necessarily 
derive  so  much  power  and  importance  from  a  state  of  war  that 
he  might  be  tempted,  if  authorized,  to  impede  a  treaty  of  peace. 
Unwillingness  of  the  late  President  to  accept  reservations  to 
the  Treaty  of  Versailles  prevented  peace  by  means  of  the  treaty, 
for  a  treaty,  as  such,  cannot  be  made  by  Congress.  A  treaty  is 
an  act  to  which  two  or  more  nations  are  parties.  It  is  a  bi-lateral 
act."  And  then  continues  some  discussion  of  the  nature  of  a 
treaty,  and  a  quotation  from  Chief  Justice  Marshall  which  con- 
tinues over  on  page  54. 

The  question  of  whether  President  Wilson  was  unwilling  to 
accept  reasonable  reservations  in  the  Treaty  of  Versailles,  and 
whether  his  action,  whatever  it  was,  was  the  cause  of  the  rejec- 
tion of  that  treaty,  is  a  controversial  political  question  on  which 
this  assembly  is  divided.  It  has  no  place  here.  We  are  met  for 
the  improvement  of  the  law,  we  are  met  here  to  bring  about  a  more 
efficient  and  satisfactory  administration  of  justice,  we  are  met  to 
produce  better  conditions  in  the  Bar,  and  we  cannot  bring  about 
those  results,  if  controversial  questions,  political  questions  on 
which  we  are  divided,  are  brought  into  this  assembly,  and  there- 
fore I  ask,  on  behalf  of  those  who  feel  as  I  do  on  this  matter,  Mr. 
Scott,  that  you  withdraw  the  portion  of  the  report  beginning  on 
page  53,  with  the  words:  "A  situation  had  this  arisen,'*  and 
continuing  on  through  the  first  two  lines  on  page  54. 


RSPOBTS  OF   00MMITTBB6.  57 

The  Prefiident: 

Dr.  Scott,  you  have  heard  the  request  made  afi  to  the  elimina- 
tion of  certain  recitals  in  the  report. 

Mr.  Scott: 

Mr.  Chairman,  I  would  like  to  relieve  his  mind.  There  is  no 
intention  of  injecting  any  controversy,  there  is  no  intention  of 
producing  a  controversy,  and  it  gives  me  very  great  pleasure  in- 
deed to  accede  to  the  request  of  the  gentleman,  because  I  think 
we  are  here  to  unite,  not  to  divide,  and  that  anything  that  would 
seem  to  be  offensive  to  any  member  should  be  gladly  eliminated 
upon  a  request,  without  discussion. 

The  President: 

Gentlemen,  the  report  now  stands  before  you  deleted  to  the 
extent  stated  by  Judge  Goodwin,  namely,  to  strike  out  from  the 
middle  of  page  63,  the  part  beginning,  "  A  situation  had  thus 
arisen,^'  down  to  the  end  of  the  quotation  from  the  Antelope  case, 
on  page  54.  That  may  be  considered  as  eliminated.  Are  there 
any  other  suggestions  as  to  the  report,  aside  from  those  made  by 
Judge  Goodwin? 

Judge  Goodwin : 

I  move  the  adoption  of  the  report  as  amended. 

The  motion  was  seconded  and  carried. 

Mr.  Scott: 

I  have  a  resolution  which  I  would  like  to  present,  as  the  com- 
plement of  the  preceding  resolution,  and  I  hope  it  will  be  found  to 
be  of  a  non-controversial  character. 

The  American  Bar  Association,  at  its  45th  annual  meeting,  held  in 
the  City  of  San  Francisco,  on  August  10, 1922,  expresses  the  hope  that  the 
recommendation  of  the  committee  of  jurists  assembled  at  The  Hague, 
in  1920,  proposed  by  the  Hon.  Elihu  Root,  first,  that  a  new  conference 
of  the  nations  in  continuation  of  the  first  two  conferences  at  The  Hague 
be  held  as  soon  as  practicable,  for  the  following  purposes:  1.  To  renstate 
the  establii^ed  rules  of  international  law,  especially  in  the  first  instance 
in  the  fields  affected  by  the  events  of  the  recent  war.  2.  To  formulate 
and  agree  upon  the  amendments  and  additions,  if  any,  to  the  rules  of 
international  law  shown  to  be  necessary  or  useful  by  the  events  of  the 
war,  and  the  changes  in  the  conditions  of  international  life  and  inter- 
course which  have  followed  the  war.  3.  To  endeavor  to  reconcile 
diver^nt  views  and  secure  general  agreement  upon  the  rules  which  have 
been  m  dispute  heretofore.    4.  To  consider  the  subjects  not  now  ade- 


58  AMERICAN   BAR  ASSOCIATION. 

quately  reflated  by  international  law,  but  as  to  which  the  interests 
of  international  justice  require  that  rules  of  law  shall  be  declared  and 
accepted.  To  render  this  recommendation  effectivei  the  American  Bar 
Association  instructs  its  Committee  on  International  Law  to  present 
a  report  to  the  next  meeting  of  the  Association  concerning,  in  general, 
each  of  said  recommendations. 

The  motion  was  seconded. 

The  President: 

It  has  been  moved  and  seconded^  that  the  resolution  offered  by 
Mr.  Scott  be  adopted.  I  understand  that  it  is  a  recommendation 
unanimously  adopted  by  the  jurists  at  The  Hague^  upon  the  sug- 
gestion of  Mr.  Boot. 

Mr.  Scott: 

Yes,  proposed  by  Mr.  Root. 

Chief  Justice  Taft: 

Is  a  motion  to  amend  the  resolution  in  order? 

The  President : 
Yes. 

Chief  Justice  Taft : 

The  first  resolution  that  was  passed,  as  I  understand  it^  inti- 
mated a  desire  on  the  part  of  the  committee,  and  which  desire 
was  approved  by  the  Association,  that  some  means  should  be 
found  by  which  the  United  States  could  have  the  benefit  of 
association  in  the  International  Court  now  sitting  at  The  Hague. 

Now,  this  resolution  is  an  instruction  to  the  Committee  on 
International  Law,  upon  certain  subjects,  instructions  drafted  by 
Mr.  Boot,  and  I  have  no  doubt  the  Association  would  gladly  adopt 
those  resolutions,  or  rather,  the  instruction  to  the  committee, 
but  it  seems  to  me  it  might  be  well  to  add  that  the  committee  be 
also  instructed  to  report  the  machinery  that  it  has  in  mind  in 
the  first  general  resolution  which  we  adopted,  namely,  to  suggest 
the  changes  in  the  statute  organizing  the  present  court,  which  it 
seems  to  the  committee  might  make  it  possible  for  the  United 
States  to  become  a  party  to  that  court,  without  further  obligation. 
In  other  words,  I  think  the  committee  ought  to  carry  it  further 
than  a  mere  general  expression  of  hope.  I  think  they  ought  to 
formulate  something  so  as  to  help  us  in  respect  to  reaching  that 
which  they  express  a  hope  may  come. 


BSP0BT8  Oir  OOltliCITTHBd.  69 

And  I  move^  therefore^  that  that  be  adopted  as  part  of  this 
resolution,  namely,  an  instruction  to  the  committee  to  formulate 
such  amendments  or  changes  in  the  statute  which  now  consti- 
tutes the  court  which,  in  the  judgment  of  the  committee,  might 
jnake  it  possible  for  the  United  States  to  accept  it. 

The  President: 

Is  the  amendment  seconded? 

The  amendment  was  seconded  and  carried. 

The  President: 

The  question  now  is  upon  the  resolution  offered  by  Mr.  Scott, 
as  amended  by  the  Chief  Justice.    Are  there  any  further  re- 
marks ?    If  not,  all  in  favor  will  say  "  Aye.^^    Opposed,  "  No.^' 
The  resolution  is  unanimously  adopted. 
(See  Report,  page  3^3.) 

Committee  on  Insurance  Law: 

James  E.  Kerr,  of  Oregon : 

I  have  been  requested  by  Mr.  Vorys,  to  present  his  report  in 
his  absence.  The  report  is  here  in  the  form  of  a  very  succint 
typewritten  statement,  which  can  scarcely  be  summarized  in 
any  shorter  space  than  it  is  written. 

On  behalf  of  the  Committee  on  Insurance  Law,  I  move  that 
the  Committee  be  instructed  to  continue  furnishing  copies  of 
the  Code  to  those  interested  in  such  legislation  in  the  several 
states,  and  that  the  committee  urge  upon  the  Congress  the 
enactment  of  a  code  for  the  regulation  of  insurance  in  the 
District  of  Columbia,  and  I  add  to  that  motion  that  this  report 
be  received  and  made  a  part  of  this  proceeding. 

The  motion  was  seconded  and  carried. 
(See  Report,  page  363.) 

Committee  on  Publicity : 

Mitchell  D.  FoUansbee,  of  Illinois : 

Your  committee  has  reported  briefly  on  page  77  of  the  pam- 
phlet of  reports.  It  has  no  resolutions  to  offer,  but  it  takes  this 


60  AMBRICAN   BAK  ASSOCIATION. 

opportunity  to  thank  the  yarions  news-gathering  agencies,  such 
as  the  Associated  Press,  for  their  courteous  and  generous  and 
constant  cooperation.  Publicity,  of  course,  is  debarred  to  the 
individual  practitioner,  but  this  is  a  matter  of  collective  bar- 
gaining, and  there  is  a  sanction  to  the  written  word.  It  Las. 
been  the  theory  of  us  amateurs,  that  the  more  times  the  Ameri- 
can Bar  Association  could  be  mentioned  with  approbation  in 
the  papers  scattered  around  the  country,  which  the  plain  and 
other  people  read,  the  more  sanction  would  be  given  to  it,  and 
more  weight  would  be  given  to  its  recommendation.  So,  while 
the  Publicity  Committee  does  not  write  the  speeches  that  are 
delivered,  it  digests  and  sends  them  out  from  coast  to  coast,  and 
during  the  year  it  sends  out  matters  that  may  be  of  interest  or 
may  be  assumed  to  be  news.  We  tested  the  results  of  our  efforts 
by  subscribing  to  a  press  clipping  bureau,  and  so  much  stuflE 
rolled  in  that  nobody  could  possibly  read  it,  and  so  we  stopped 
the  subscription.  I  am  sure  that  the  next  committee  will  be 
very  glad  to  have,  as  we  have  had,  any  recommendations  for 
suggestions  that  can  be  made  among  the  members,  some  of  whom 
may  be  more  familiar  with  publicity  than  the  members  of  your 
committee  have  been. 

The  Chairman: 

The  report,  requiring  no  action,  will  be  received. 
{See  Report,  page  39 Jf,) 

Committee  on  Memorials: 

The  Secretary  read  the  report  of  the  Committee  on  Memor- 
ials, and  during  the  reading  of  the  report,  the  delegates  and 
audience  remained  standing. 

{See  Report,  page  395.) 

Committee  on  Jurisprudence  and  Law  Beform: 

Henry  W.  Taft,  of  New  York : 

The  Association  will  share  with  the  committee  the  regret  that 
the  familiar  figure  of  Mr.  Wheeler  does  not  appear  here  for  the 
presentation  of  this  report.  His  health  did  not  permit  him  to 
make  the  trip  across  the  continent,  nevertheless,  he  was  in  a 


BBFOBTS  OF  COMMITTEES.  61 

condition  which  enabled  him  to  formulate  for  the  committee 
this  report^  and  he  has  asked  me  to  present  it. 

I  suppose  there  is  a  conclusive  presumption  that  all  of  the 
Yoluminous  literature  which  is  distributed  by  the  officers  of  the 
Association  has  been  assiduously  examined  by  the  members  of 
the  Association^  and  therefore,  unless  there  is  a  request  I  shall 
not  read  the  text  of  this  report,  but  endeavor  to  curtail  its 
presentation  by  stating  the  substance  of  it,  except  certain  im- 
portant parts,  which  perhaps  would  be  better  presented  as  it 
was  agreed  upon  by  the  committee. 

The  first  subject  which  haa  been  dealt  with  by  the  committee, 
is  the  subject  of  declaratory  judgments.  That  subject  has 
received  the  attention  of  the  committee  during  several  years, 
and  has  finally  resulted  in  the  recommendation  that  Congress 
enact  a  provision  that  the  courts  be  empowered  to  render  de- 
claratory judgments.  There  has  been  considerable  literature 
upon  that  subject,  and  some  of  the  states,  including  my  own 
state,  have  adopted  provisions  of  the  statute  authorizing  de- 
claratory judgments.  In  England,  they  are  authorized  to  render 
such  judgments,  and  I  am  informed,  so  far  as  statistics  are  ob- 
tainable, that  something  like  50^  of  the  judgments  in  the  courts 
of  England  are  rendered  in  cases  in  which  a  declaratory  judg- 
ment is  rendered  by  the  court.  I  presented  this  matter  to  the 
Judiciary  Committees  of  the  two  Houses  of  Congress,  and  there 
ensued  a  very  full  discussion  of  the  subject.  The  committee  is 
firmly  of  the  opinion  that  our  system  of  jurisprudence  and  pro- 
cedure would  be  advanced  by  a  provision  authorizing  the  courts 
to  make  declaratory  judgments.  We  have  appended  to  our 
report  a  number  of  cases  in  which  such  judgments  would  be 
useful.  Of  course,  I  cannot  detain  you  today  by  attempting  to 
state  cases  in  which  they  would  serve  in  the  administration  of 
justice.  It  is,  perhaps,  sufficient  to  mention  one,  that  is  to 
say,  when  a  contract  which  has  yet  to  be  performed,  and  in 
respect  of  which  no  liability  has  arisen,  and  where  both  the 
parties  are  desirous  of  being  guided  in  their  conduct  in  relation 
to  the  contract,  and  a  real  controversy  exists,  they  may  appeal 
to  the  court,  and  have  the  contract  construed  for  their  guid- 
ance in  the  future.  There  are  many  other  instances  in  which 
the  judgment  would  be  useful.    We  have,  accordingly,  recom- 


62  AMEBICAK  BAR  ASSOOIATION. 

mended  that  Congress  enact  a  provision  authorizing  declaratory 
judgments,  and  we  have  formulated  a  bill  after  a  number  of 
efforts  in  an  endeavor  to  avoid  pitfalls,  and  have  succeeded  in 
drawing  a  very  brief  bill,  which  has  been  presented  to  the  com- 
mittees of  both  Houses  of  Congress. 

The  member  of  my  family  who  occupies  an  official  position, 
this  morning  stated  one  form  of  the  simplification  of  practice, 
namely,  the  simplification  of  all  proceedings  for  appeal  in  the 
federal  courts,  excepting  in  the  case  of  writs  of  certiorari.  That 
was  one  of  the  subjects  that  the  Committee  on  Jurisprudence 
and  Law  Reform  recommended  to  Congress,  and  appears  to 
meet  with  a  pretty  universal  approbation,  and  that  forms  one 
chapter  of  the  report  of  the  committee.  The  most  troublesome 
question  that  we  have  had  to  deal  with  is  the  removal  of  cases 
to  the  federal  courts.  The  whole  srabject  of  removal  of  causes 
is  in  a  hopeless  state  of  confusion,  owing  to  the  differing  views 
of  the  courts  in  the  several  circuits  concerning  that  provision 
of  the  judicial  code  relating  to  the  proper  place  for  the  com- 
mencement of  a  suit  in  the  federal  court.  There  is  a  hopeless 
inconsistency  and  conflict  in  the  decisions  in  the  several  circuits. 
Our  friend,  Mr.  Boston,  has  been  of  great  assistance  to  us  in 
considering  this  subject.  I  think  that  his  attention  to  it  has 
been  largely  stimulated  by  painful  experience  in  his  professional 
practice.  In  any  case,  he  has  been  able  to  throw  much  light  on 
the  general  subject.  The  Supreme  Court  has  said  that  the 
condition  is  such  in  respect  to  the  provisions  of  the  law  relating 
to  removal  of  causes,  that  there  is  no  remedy  excepting  an 
amendment  of  the  law,  and  we  have  endeavored  to  formulate, 
and  we  have  submitted  to  Congress,  a  provision  which  probably 
will  remove  all  difficulties  in  the  future.  I  think  that  will 
pass  both  Houses  from  the  expressions  which  were  made  when  I 
appeared  before  them,  indicating  that  they  are  willing  and 
anxious  to  remove  the  doubt  upon  that  subject.  It  required  an 
amendment  of  two  sections  and  the  addition  of  one  section  to 
the  judicial  code. 

We  attempted  to  provide  for  procedure  in  the  federal  courts 
for  the  protection  of  the  interests  of  aliens.  We  did  not  succeed 
in  getting  the  bill  which  we  recommended  approved  by  the 
committees  of  Congress,  but  through  the  efforts  of  Mr.  Moores, 


BBP0BT8  OF  OOKKITTBB&  63 

who  was  a  member  of  our  committee^  and  a  member  of  the  Hotise 
of  Bepresentatives  from  Indiana,  we  did  succeed  in  getting 
inserted  into  the  anti-Iynching  bill,  a  sort  of  a  rider,  substan- 
tially covering  the  subject-matter.  As  to  the  constitutionality 
of  the  main  portion  of  the  anti-lynching  bill,  one  of  our  mem- 
bers, our  respected  representative  from  Colorado,  has  entered  a 
protest,  expressing  his  doubt  as  to  the  constitutionality  of  the 
provisions  of  that  law,  but  even  though  the  other  provisions  be 
declared  to  be  xmconstitutional,  it  seems  to  us  quite  clear  that 
the  provision  relating  to  the  power  of  the  court  to  deal  with 
rights  of  aliens  may  be  sustained,  even  though  the  rest  of  the 
act  be  declared  to  be  unconstitutional. 

Senator  Nelson  has  endeavored  to  procure  the  passage  of  a  law 
permitting  an  accused  person  to  plead  guilty  at  any  time.  He 
thinks,  and  his  experience  in  courts  in  Minnesota  has  lead  to  the 
conclusion,  that  a  plea  of  that  kind  will  tend  to  facilitate  the  trial 
of  cnminal  cases,  and  at  his  request,  and  after  a  consideration  of 
the  subject,  the  committee  decided  to  recommend  the  act  which 
Senator  Nelson  has  introduced  to  accomplish  that  result. 

Our  attention  was  called  to  the  subject  of  f^es  and  costs  in 
the  federal  courts.  You  all  will  recall  that  Senator  Norris  de- 
livered an  elaborate  speech  upon  that  subject,  especially  charg- 
ing that  the  expenses  and  costs  in  the  federal  courts  in  many 
cases  exceeded  those  in  the  state  court.  Investigation  by  the 
committee  has  shown  that,  to  a  certain  extent,  those  assertions 
were  true.  We  have  not  recommended  anything  specific.  The 
subject  is  very  broad,  but  it  is  a  subject  which  ought  to  receive 
very  careful  consideration.  The  committee  ten  years  ago  or 
more  several  times  recommended  that  the  present  system  for 
payment  of  the  bills  of  stenographers  be  abolished,  and  that  that 
whole  subject  be  put  in  the  discretion  of  the  court.  That  recom- 
mendation was  made  to  Congress,  but  upon  being  presented  to 
the  committees  of  Congress  there  was  the  bitter  opposition  of 
the  Stenographers'  Union,  and  it  resulted  in  the  defeat  of  the 
measure.  They  preferred  that  the  parties  should  be  made  to  pay 
their  expenses  without  any  supervision  by  the  court.  The  whole 
subject  of  the  expense  in  the  federal  courts  ought  to  be  taken 
up  and  disposed  of. 

3 


64  AMERICAN   BAB  ASSOCIATION. 

Ten  years  ago  a  bill  was  introduced,  which  it  was  hoped 
might  diminish  the  cost  of  legal  proceedings  in  the  federal 
courts,  but  on  account  of  some  ambiguities  in  the  bill,  we  are 
advised  by  the  Attorney-General  that  it  has  not  accomplished 
the  desired  object,  and  the  whole  subject  needs  to  be  taken  up 
and  formulated.  The  committee  will  continue  its  examination 
with  a  view  to  that  result.  ' 

The  next  subject  taken  up  by  the  committee  is  that  of  injunc- 
tions. In  view  of  the  importance  of  that  subject,  I  shall  adhere 
to  the  expressions  of  the  committee,  which  appear  on  page  82 
of  the  report.  The  subject  was  brought  up  by  the  introduction, 
by  Mr.  Backarack  of  New  Jersey,  of  a  bill  which  provided  that 
no  district  or  circuit  court,  or  the  judge  thereof,  shall  have 
jurisdiction  to  entertain  any  bill  of  complaint,  suspending  or 
restraining  the  enforcement,  operation  or  execution  of  any  order 
made  by  any  administrative  board  or  commission  in  any  state, 
acting  under  and  in  pursuance  to  the  statutes  of  such  state, 
where  such  order  was  made  after  a  hearing  upon  notice,  nor  to 
entertain  jurisdiction  upon  any  bill  of  complaint,  to  suspend 
or  restrain  the  enforcement,  operation  or  execution  of  the 
statute  under  which  such  order  was  made  in  any  case  where, 
under  the  statute  of  the  state,  provision  is  made  for  a  judicial 
review  of  such  order  upon  the  law  and  the  facts.  There  is  a 
provision  in  the  bill  that  it  shall  not  apply  to  matters  affecting 
interstate  commerce. 

This  whole  subject  was  dealt  with  by  the  committee  as  far 
back  as  1913,  and  subsequently  in  1914,  and  in  these  reports 
the  committee  then  undertook  to  vindicate  the  existing  law, 
that  is,  permitting  the  courts  to  issue  such  injunctions  and  to 
approve  the  practice  of  the  courts  in  respect  thereto.  The  com- 
mittee has  quoted  from  its  report  of  1913,  and  the  subject  was 
so  briefly  but  completely  covered  by  that  report  that  I  am 
going  to  detain  the  Association  by  reading  an  extract  from  that 
report. 

The  complaint  against  injunctions  is  really  the  direct  reverse  of  the 
complaint  TK^ich  is  also  common  that  legal  procedure  is  technical  and 
dilatory.  The  procedure  in  injunction  cases  is  neither.  Either  party  is 
at  liberty  to  put  in  any  evidence  it  chooses,  without  regard  to  the 
technical  rules  which  prevail  in  the  ordinary  trial  of  causes,  and  the 
hearing  is  speedy.  The  whole  arsenal  of  technical  points  by  which  cases 
are  often  procrastinated  is  of  no  avail  here.    The  true  purpose  of  an 


RSP0BT8  OF   00KKITTBB8.  66 

injunction  is  to  prevent  irreparable  injury.    This  may  mean  either  an 
injury  that,  in  a  strict  sense  of  the  word,  cannot  in  any  way  be  made 

Sood,  or  an  injury,  the  consequences  of  which  shall  be  such  that  the 
amage  consequent  upon  it  cannot  be  accurately  adjusted,  and  so 
cannot  be  compensated  by  any  money  payment.  In  theoi]y  injunction  is 
the  defense  of  the  weak  against  the  strong.  The  conditions  of  society 
are  such  that  some  men  have  power  far  greater  than  others.  This  power 
may  come  from  their  great  wealth;  it  may  come  from  their  organisa- 
tion afid  discipline.  Without  the  right  of  injunction,  it  would  be  per- 
fectly possible  for  such  persons  to  commit  wrongs  against  their  fellow- 
citizens,  and  then,  having  obtained  the  object  they  desire,  sit  down  and 
calmly  wait  the  result  of  an  action  for  damages.  In  defendhig  such  an 
action  all  the  delays  which  are  possible  under  systems  of  jurisprudence 
would  be  availed  of,  every  technical  objection  would  be  taken,  every 
possible  appeal  would  be  resorted  to.  In  many  cases  the  plaintiff  would 
not  have  the  pecuniary  means  to  prosecute  the  suit  to  a  conclusion.  In 
many  others  the  burden  of  contesting  it  would  be  so  great  that  he  would 
relinquish  the  contest,  and  the  aggressor  would  remain  in  possession  of 
the  field. 

Under  our  present  ^stem,  when  such  an  injury  is  threatened,  the 
party  who  has  reason  to  apprehend  it,  may  apply  to  the  court,  and 
obtain  an  order  immediately  forbidding  the  aggressor  to  commit  the 
wrong,  and  requiring  him  to  show  cause  why  he  should  not  be  perma- 
nently forbidden  to  commit  it  during  the  pendency  of  the  suit.  The 
hearing  in  such  case  is  prompt.  The  evidence,  it  is  true,  is  by  affidavit 
and  not  subject  to  cross-examination,  but  in  point  of  fact,  the  actual 
facts  of  the  case  are  generally  presented  to  the  court.  Both  parties  are 
heard  by  coimsel,  and  the  •court  promptly  passes  upon  their  rights.  In 
the  case  of  doubt,  the  injunction  is  retused.  But  if  the  party  has  made 
out  a  clear  case,  it  is  granted.  The  aggressor  still  has  the  right  to  a  full 
trial  in  ordinary  course,  with  the  right  to  cross-examination  of  the 
adversary  witnesses.  But  in  nine  cases  out  of  ten  he  does  not  avail  of 
this  right.  The  injunction  has  defeated  his  nefarious  attempt  to  injure 
or  destroy  some  one  who,  for  some  reason,  he  wishes  to  assail,  and  he 
gives  up  the  contest. 

We  cannot  close  this  part  of  our  report  better  than  by  quoting 

from  the  language  of  Mr.  Justice  Brewer^  in  an  address  delivered 

in  Brooklyn,  November  23rd,  1909.    Justice  Brewer  said : 

When  the  choice  is  between  the  redress  or  prevention  of  injury  by 
force,  or  by  whatsoever  process,  the  law  is  well  pleased  if  the  individual 
will  consent  to  waive  his  right  to  the  use  of  force,  and  await  its  action. 
Government  by  injunction  has  been  an  object  of  easy  denunciation. 
So  far  from  restraining  its  power,  there  never  was  a  time  when  its 
restrictive  and  vigorous  exercise  was  worth  more  to  the  nation  and  for 
the  best  interests  of  all.  As  population  becomes  more  dense,  as  business 
interests  multiply,  and  crowd  each  other,  the  restraining  power  of  the 
court  of  equity  is  of  far  greater  importance  than  the  punishini;  power 
oi  the  criminal  law.  The  best  scientific  thought  of  the  day  is  along 
the  lines  of  prevention,  rather  than  those  of  cure.  We  aim  to  stay  the 
spread  of  ^idemics  rather  than  to  permit  them  to  run  their  course,  and 
attend  solely  to  the  work  of  curins  the  sick.  And  shall  it  be  said  of  the 
law,  which  claims  to  be  the  perfection  of  reason,  and  to  express  the 
highest  thoughts  of  the  day,  that  it  no  longer  attempts  to  prevent  the 
wrong,  but  limits  its  action  to  the  matter  of  punishment?  To  take 
away  the  equitable  power  of  restraining  wrong  is  a  step  backward,  to- 
ward barbarism,  rather  than  a  step  forward  toward  higher  civilization. 


66  AMBBICAN   BAR  ASSOOIATION. 

Courts  make  mistakes  in  flranting  injunctions.  So  th^  do  in  other 
orders  and  decrees.  Shall  the  judicial  power  be  taken  away  because  of 
their  occasional  mistakes?  The  argument  would  lead  to  the  total 
aboUtion  of  the  judicial  fimction. 

The  action  of  the  committee  in  relation  to  injunction  a  dozen 
years  ago  was  approved  by  this  Association.  There  have  been 
hearings  upon  this  bill  before  the  committees  of  Congress.  Mr. 
Harron  of  our  committee  has  appeared  in  behalf  of  the  Associa- 
tion, and  has  pointed  out  some  objections  to  the  bill  introduced 
by  Mr.  Backarack^  which  would  limit  the  power  of  courts  in 
relation  to  injunction,  and  this  committee  has  unanimously  voted 
to  disapprove  the  bill.  Information  as  to  this  vote  has  been 
presented  to  the  Judiciary  Committee,  which  has  the  matter 
under  consideration. 

In  connection  with  the  subject  of  injunction,  the  Section 
dealing  with  the  Law  of  Public  Utilities,  during  a  session  of  this 
Association,  has  adopted  a  series  of  resolutions,  and  the  members 
of  that  committee  have  handed  me  these  resolutions,  requesting 
that  I  read  them  in  connection  with  the  report  of  the  Conmiittee 
on  Jurisprudence  and  Law  Reform.  They  relate  to  a  special 
phase  of  the  subject,  but  they  are  germane  to  the  general  subject, 
relating  only  to  Public  Utilities,  nevertheless,  they  have  a  con- 
nection which  is  obvious. 

Resolved,  That  the  Section  on  Public  Utility  Law  of  the  American 
Bar  Association  hereby  expresses  the  emphatic  opposition  of  its  mem- 
bership to  the  Backarack  bill  now  pending  in  Congress,  and  to  any 
similar  legislation,  designed  to  limit  or  destroy,  as  to  any  particulso* 
class  of  litigants  or  rights,  the  present  equitable  powers  of  the  federal 
courts,  to  enforce  the  guaranties  of  the  federal  constitution  for  the 
protection  of  person  andf  property; 

Resolved,  further,  That  the  Section  ask  its  Chairman,  in  its  report  to 
the  Association,  to  present,  at  least  in  outline,  the  considerations  which 
have  been  developed  in  the  discussions  before  the  Section,  as  demon- 
strating the  extreme  unwisdom  of  any  such  radical  curtailment  of  the 
federal  judicial  power; 

Resolved,  further,  Thekt  the  Chairman  of  this  Section  of  the  sub-com- 
mittee, be  enabled,  at  to-day's  session,  or  authorized  in  behalf  of  the 
AaBociation,  to  take  such  further  steps  as  in  their  judgment  may  be 
advisable  to  bring  about  the  endorsement  bv  the  Association  of  the 
actions  of  its  Committee  on  Jurisprudence  and  Law  Reform,  in  actively 
opposing  the  Backarack  Bill,  at  the  present  sessfon  of  Con^press,  and 
also  to  support,  before  the  Association,  any  suitable  resolution  which 
may  be  offered  in  condemnation  of  that  or  similar  legislation. 

The  conamittee  has  dealt  with  the  subject  of  reducing  the 
business  of  the  Supreme  Court.  The  heading  of  this  Section 
report  is,  "Increasing  the  number  of  judges  in  the  Supreme 


JUEPOBTS  OF  OOMMITTBES.  67 

Court/'  I  think  that  is  an  error.  The  committee  has  not  recom- 
mended an  increase  of  the  judges  of  the  Supreme  Court.  On  the 
contrary^  its  consideration  of  the  subject  has  led  it  to  make  recom- 
mendations in  line  with  those  which  were  explained  by  the  Chief 
Justice  this  mornings  in  his  address. 

There  has  been  considerable  complaint  concerning  the  jurisdic- 
tion of  the  federal  courts  in  actions  for  personal  injury  and  other 
torts.  Advantage  has  been  taken  of  various  circumstances  to 
obtain  jurisdiction  under  the  present  provisions  of  the  law  in 
courts  which  are  unsuitable  for  the  trial  of  that  class  of  cases. 
It  has  been  represented  to  us  that  the  defendants  are  frequently 
embarrassed  in  having  to  try  their  cases  in  foreign  jurisdictions, 
in  many  cases  at  a  great  distance  from  places  where  the  witnesses 
may  be  obtained,  and  there  is  no  present  provision  of  the  law  by 
which  the  venue  may  be  changed  into  another  circuit.  Further- 
more, it  has  had  the  result  of  imposing  upon  foreign  jurisdictions 
the  expense  of  trying  cases  which  have  no  business  to  be  there, 
and  which  have  no  natural  connection  with  the  district.  As  the 
result  of  that  the  committee  has  recommended  that  a  bill  be 
passed  by  Congress  which  would  make  the  jurisdiction  of  the 
court  dependent  upon  the  residence  of  the  parties  and  upon  the 
happening  of  the  events  which  led  to  the  litigation.  Substanti- 
ally, gentlemen,  that  is  the  report  which  has  been  made  by  your 
committee,  and  we  recommend  the  adoption  of  these  brief  reso- 
lutions : 

Resolved,  That  this  Association  approve  the  action  of  the  Committee 
on  Jurisprudence  and  Law  Reform,  detailed  in  the  foregoing  report; 

Resolved,  That  this  Association  instructs  the  said  committee  to  con- 
tinue to  promote  the  passage  of  the  bills  mentioned  in  such  report 
which  have  the  approval  of  said  committee. 

I  offer  those  resolutions  for  adoption. 

The  President: 

Is  it  desired  that  they  be  separated,  or  is  it  the  desire  of  the 
Association  that  they  be  considered  together?  If  there  are  no 
objections,  the  resolutions  will  be  considered  together. 

F.  M.  Oliver,  of  Georgia: 

I  have  listened  attentively  to  the  report^  and  I  feel  that  I  did 
not  catch  the  substance  of  the  report  relative  to  costs  of  appeal 
in  the  federal  courts.    Personally,  I  would  like  to  know  if  the 


68  AMEBICAN   BAR  ASSOCIATION. 

committee^  in  its  printed  report^  has  suggested  a  means  by  which 
those  costs  may  be  reduced. 

H.  W.  Taf t : 

There  is  a  paragraph  which  deals  with  that  particular  subject. 
It  is  inconclusive,  so  far  as  the  recommendation  of  any  remedy 
is  concerned,  and  merely  states  that  the  committee  is  clearly  of 
the  opinion  that  the  subject-matter  does  require  attention,  as 
Senator  Norris,  in  his  speech  said.  The  committee,  however, 
reports  a  bill  to  diminish  the  expenses  of  proceedings  on  appeal 
and  writs  of  error  that  was  proposed  by  the  committee,  and  recom- 
mended by  the  Association  in  1909,  and  again  in  1910.  This 
bill  was  amended  in  Congress  and  that  is  the  difficulty,  because, 
in  its  amended  form,  it  was  passed,  and  the  Attorney-General,  in 
his  last  report,  at  page  4,  has  stated  that  the  language  of  that 
act,  as  it  was  amended  by  Congress,  was  ambiguous,  and  has 
resulted  in  much  confusion  in  the  matter  of  fees  and  other 
charges.  The  Attorney-General  informed  the  committee  that 
Congress  has  attempted  no  action  upon  his  recommendations  for 
the  amendment  of  this  statute.  Your  committee  is  engaged  in 
examining  the  subject,  and  hopes  to  be  able  to  aid  in  eliminating 
the  ambiguity  complained  of. 

Andrew  A.  Bruce,  of  Minnesota : 

I  wish  to  address  myself  briefly  to  the  subject  of  the  injunction. 
I  was  a  member  of  the  Committee  on  American  Ideals,  and  was 
almost  tempted  to  waste  the  time  of  the  audience  this  morning, 
after  the  presentation  of  the  report,  but  it  seemed  absolutely  un- 
necessary on  account  of  the  unanimity  of  sentiment  that  was 
expressed.  But  it  does  seem  to  me  that  at  that  time  the  question 
might  have  been  considered  perhaps  a  little  more,  and  that  it 
might  have  been  considered  in  connection  with  this  very  question 
of  the  injunction.  It  seemed  to  me  that  the  report  this  morning 
was  simply  a  report  which  advocated  the  propaganda  of  American- 
ism, as  opposed  to  the  propaganda  of  the  soap-box,  of  the  parlor 
socialist,  and  of  the  misguided  idealist,  and  that  it  is  about  time 
in  America  that  we  faced  the  issues  and  that  we  realized  that  we 
are  coming  pretty  nearly  to  the  jumping  oflf  place  of  government. 
I  have  had  occasion  myself,  when  I  happened  to  be  on  the  Bench, 
and  when  a  decree  was  issued  by  the  court  which  was  unpopular 


BBP0RT8  OF   COMMITTEES.  69 

I 

politically^  to  face  a  man  who  suggested  that  the  decree  would 
not  he  obeyed,  because  the  other  side  had  twenty  or  thirty  thou- 
sand majority.  And  when  we  come  to  the  injunction,  we  realize 
every  time  that  it  is  a  question  of  whether  the  rank  and  file  of 
the  American  people  will  stand  back  of  that  injunction.  In 
Europe  we  fought  for  a  government  of  law  among  nations,  as 
opposed  to  the  government  of  the  temporary  majority,  or  the  well- 
organized  minority.  We  asserted  the  fact  that  a  treaty  of  inter- 
national law  was  supreme,  even  though  the  minority  was  organized 
and  had  the  heaviest  battalions.  The  great  victory  of  the  World 
War  was  the  demonstration  of  the  fact  that  the  great  unorganized 
majority^  the  unorganized  military  of  England,  with  its  little 
army  of  150,000  men,  the  great  unorganized  democracy  of 
America,  could,  as  a  matter  of  lafit  resort,  when  forced  to  the 
issue,  organize  and  overcome  the  militant  and  the  lawless  mi- 
nority. That  is  the  issue  in  every  question.  I  think  we  hardly 
realize  the  seriousness  of  it.  When  Judge  Anderson  issued  his 
injunctions  recently,  in  the  last  coal  strike,  fortunately,  the  labor 
men  had  the  common-sense  to  bow  to  the  decree  of  the  court, 
but  what  would  have  happened  if  they  had  refused  to  obey?  In 
every  case  we  come  to  the  question  of  whether  the  law-abiding 
sense  of  the  community  is  strong  enough  to  enforce  the  law.  Our 
Supreme  Court  decides  issues  between  sovereign  states,  questions 
that  in  Europe  would  mean  civil  war,  and  yet  somebody  has 
said  that  all  the  Supreme  Court  has  to  enforce  its  decrees  with 
is  a  female  stenographer,  and  a  one-legged  bailiff.  But  after 
all,  we  enforce  them,  because  of  the  sense  of  law  and  order  that 
is  in  the  community,  the  realization  that,  after  all,  back  of  these 
decrees  of  the  court,  are  the  arms,  the  hands,  the  bayonets,  if 
necessary,  of  the  great,  unorganized  people.  The  whole  thing  is 
a  question  of  a  governme*nt  of  law.  Back  of  a  government  of  law 
must  be  the  unorganized  might  of  the  people.  In  order  to  have 
the  unorganized  might  of  the  people,  you  must  have  a  belief  in 
the  law,  a  belief  in  American  institutions,  a  belief  in  America 
itself.  And  this  whole  question  comes  right  down  to  the  one 
question,  whether  we  in  America  really  believe  in  American  insti- 
tutions, or  whether  we  do  not.  We  have  in  America  fifty  million 
foreign  bom,  or  the  children  of  foreign  bom.  We  have  in 
America,  I  believe,  almost  sixty  million  of  the  grandchildren  of 


70  AKERIOAK  BAB  ASSOGIATIOK. 

the  foreign  bom.  I  am  not  sneering  at  the  foreign,  I  am 
one  myself,  but  I  am  enough  of  a  foreign-bom  man  to  realize 
how  difficult  it  is  for  a  foreign-born  to  understand  America. 
I  had  that  difficulty  myself.  Born  in  the  old  world,  in  the 
traditions  of  the  old  world,  proud  of  my  ancestors,  proud  of 
the  past,  how  difficidt  it  was,  really  to  become  an  American, 
really  to  visualize  the  vision  of  America,  really  to  see  what 
America  was  I  That  magnificent  vision  of  a  nation  stretching 
from  ocean  to  ocean,  composed  of  millions  of  the  foreign-bom, 
classes  who  in  Europe  would  not  associate,  nations  who  in  Europe, 
through  the  centuries,  have  been  at  war,  building  together  a  great 
cosmopolitan  civilization,  because  they  have  grasped  the  idea  of 
the  fatherhood  of  God  and  the  brotherhood  of  man,  of  real  liberty, 
and  yet  grasping  the  great  idea  that,  after  all,  even  the  firma- 
ment is  built  on  order,  and  even  the  stars  of  heaven  march  in 
time.  America!  We  have  got  to  have  faith  in  America,  we 
have  got  to  realize  the  fact  that  after  all  a  government  of  law 
is  absolutely  necessary  to  America.  And  the  trouble  today,  as 
I  say,  in  every  injunction,  is  that  one  question,  what  is  the  senti- 
ment of  the  people? 

We  need  propaganda,  that  is  what  we  need,  in  order  to  enforce 
injunctions  and  the  government  by  law.  The  trouble  in  America 
today  is  that  we  have  left  it  to  the  soap-box  orator,  to  the  socialist 
and  to  the  idealist,  who  does  not  know  anything  of  practical  life, 
very  often  to  preach  the  gospel ;  we  have  left  him  the  whole  field. 
We  have  not  spread  the  gospel  ourselves.  Thousands  of  our 
foreign-bom,  thousands  of  our  men  themselves,  have  mistaken 
ideas,  have  the  idea  that  civilization  was  born  yesterday  at  ten 
o'clock  in  the  morning.  Anything  that  is  new  appeals  to  them, 
any  change  in  American  institutions  appeals  to  them.  We  must 
realize,  and  we  must  teach  America,  if  we  want  to  get  these 
injunctions  obeyed,  the  real  conception  of  America, — that  Ameri- 
ca is  not  a  nation,  it  is  a  nation  of  nations;  that  back  of  the 
Constitution  of  America  is  not  the  work  of  a  single  moment; 
that  the  courts  of  America,  when  they  are  enforcing  the  Consti- 
tution, enforcing  the  established  law,  are  not  despots,  that  they 
are  doing  their  best  to  be  democratic,  trying  to  enforce  a  consti- 
tution which  ifi  the  work  of  all  of  the  people,  and  the  safeguard 


REPORTS  OP   00MMITTBE8.  71 

of  all  of  the  people ;  that  we  are  the  inheritors  of  the  ages^  and  that 
back  of  the  American  Constitution^  back  of  all  laws  that  we  haye 
today,  back  of  all  of  the  liberties  that  we  enjoy,  back  of  all  that 
magnificent  comradeship  which  makes  America,  are  these  strug- 
gles of  the  ages  and  of  the  centuries  in  every  land  and  in  every 
clime  from  which  we  have  taken  our  people.  That  back  of  it  is 
the  scaffold  and  gibbet,  back  of  it  are  the  fires  of  persecution. 
It  seems  to  me  that  we  want  to  go  firmly  on  record  in  regard  to 
thi£  injunction,  we  must  express  our  faith  in  the  administra- 
tion of  the  law  by  the  courts.  I  say  we  need,  above  all  things,  to 
spread  abroad  the  propaganda  of  America.  We  are  facing  the 
issue — ^the  jumping  off  place  of  government — and  we  must  take 
the  responsibility. 

Harvey  F.  Smith,  of  West  Virginia : 

I  do  not  believe  we  are  near  the  jumping  off  place.  I  live  in 
the  hills  of  West  Virginia  where,  upon  one  street  car,  we  may  hear 
six  to  twelve  languages,  but  there  is  not  in  this  country  a  place 
large  enough  for  a  decent  city  truck  patch  where,  when  the  final 
hour  comes,  people  will  not  rally  to  the  support  of  the  courts, 
whether  they  be  municipal,  state  or  federal.  We  should  not  send 
out  such  messages,  we  should  not  tell  the  newspapers  that  we 
are  near  the  jumping  off  place,  for  this  country  is  the  bulwark  of 
democratic  government.  There  are,  my  fellow  lawyers,  no  places 
of  substantial  danger  in  this  country.  These  are  isolated  spots 
where  soap-box  orators  protest,  and  we,  as  lawyers,  as  the  greatest 
body  of  patriots,  should  not  dignify  their  statements  in  this  con- 
vention in  that  manner.  I  protest.  We  are  not  near  the  jumping 
off  place.  We  have  gone  through  a  great  crisis,  but  we  have 
demonstrated  to  the  world  our  courage,  our  decision  and  the 
permanence  of  our  system  of  government  and  the  almost  universal 
determination  of  our  people  to  perpetuate  and  to  sustain  that 
system. 

H.  W.  Taft : 

Mr.  President,  the  gentlemen  have  approached  a  consideration 
of  the  general  subject  and  as  I  understand  their  argument  they 
are  both  in  favor  of  the  adoption  of  the  report  of  the  committee. 


72  AMSRICAN  BAR  ASSOCIATION. 

The  President : 

All  in  favor  of  the  adoption  of  the  report  will  say  aye,  opposed, 
no.    The  ayes  have  it,  the  report  is  adopted. 
(See  Report^  page  S66.) 

Section  of  Public  Utility  Law : 

Charles  R.  Brock,  of  Colorado : 

In  view  of  the  action  which  has  just  been  taken,  it  is  only 
necessary  for  me  to  say,  on  behalf  of  the  Section  of  Public  Utility 
Law,  that  the  program  as  printed  was  carried  out  with  the  ex- 
ception of  an  address  scheduled  to  be  delivered  by  the  President. 
An  interesting  report  was  made  by  the  Secretary,  most  interesting 
papers  were  read  and  those  papers  were  of  such  interest  that  the 
Section  believes  that  all  of  you  ought  to  have  the  advantage  of 
our  proceedings,  and,  accordingly,  a  resolution  was  prepared 
requesting  the  Executive  Committee  to  print  the  addresses  and 
the  report  of  the  Secretary  in  the  annual  report. 

The  President: 

As  I  understand  it,  the  report  requires  no  action  and  will  bo 
received  and  filed. 

The  Association  took  a  recess  until  8  P.  M. 


Sixth  Session. 

Thursday,  August  10,  1922,  8  P.  M. 

The  President : 

It  is  a  matter  of  sincere  regret  to  the  local  committee,  and  to 
the  officials  of  the  Bar  Association,  that  we  are  unable  to  have, 
tonight,  a  larger  hall,  but  it  is  impossible  and  the  management 
of  this  hall  has  been  very  kind.  They  have  put  in  several  hun- 
dred more  seats  so  that  we  have  an  audience  now  that  anywhere, 
except  in  San  Francisco,  and  for  any  meeting  of  the  Bar  Asso- 
ciation except  the  one  in  San  Francisco,  would  be  a  record- 
breaker.  But  that  is  not  entirely  due  to  the  attractions  of  the 
Bar  Association.  We  are  not  in  the  habit  of  having  the  second 
officer  of  the  government  present  at  our  meetings.    This  evening 


REPORTS  OF   COHMITTBBS.  73 

will  be  deyoted,  first,  to  the  address  to  which  you  will  listen, 
and,  second^  to  the  report  of  the  Committee  on  Law  Enforce- 
ment. It  seemed  to  the  committee  in  making  up  the  program  for 
this  meeting  that  it  was  peculiarly  suitable  that,  at  a  time  when 
the  Association  is  to  consider  the  subject  of  law  enforcement  in 
the  face  of  the  crime  wave  which  has  been  going  over  this 
country  for  sometime  past,  the  report  of  the  committee  should 
be  preceded  by  an  address  of  the  man  who  announced,  as  gqod 
American  doctrine,  that  there  is  no  right  to  strike  against  the 
public  safety  by  anybody,  anywhere,  anytime.  That  language 
is  quoted  from  the  message  signed  by  the  then  Governor  of  the 
State  of  Massachusetts,  now  the  Vice-President  of  the  United 
States,  whom  I  have  the  honor  to  introduce. 

Calvin  Coolidge,  Vice-President  of  the  United  States,  then 
delivered  his  address. 

(See  Address,  page  270.) 

Committee  on  Law  Enforcement. 

W.  B.  Swaney,  of  Tennessee : 

Our  committee  has  requested  Governor  Whitman,  of  New 
York,  who  has  a  splendid  voice,  to  read  the  report  so  that  you 
can  thoroughly  understand  it.  This  report  was  not  printed  in 
time  for  general  distribution.  For  that  reason  we  ask  your 
careful  attention  to  it  on  account  of  its  great  importance. 

The  President : 

Ladies  and  gentlemen,  this  report  will  be  read  by  a  member 
of  this  committee  whom  you  all  know  as  a  man  who  enforced  the 
law  against  the  gunmen  and  others  in  New  York  City. 

Charles  S.  Whitman,  of  New  York,  read  the  report  of  the 
Committee  on  Law  Enforcement. 
{See  Report  J  page  Jt2^,) 

Mr.  Whitman : 

Mr.  President,  I  submit  the  report  of  the  committee  and  move 
its  adoption. 

The  motion  was  seconded. 


74  AKERICAN  BAB  ASSOCIATION. 

Nathan  William  MacChesney,  of  Illinois: 

I  would  like  to  ask  the  Chairman  of  the  committee  if  the 
committee  quoted  the  excerpt  from  the  report  of  Doctor  Adier 
with  his  approval? 

Mr.  Whitman : 

We  had  Doctor  Adler's  assistant  appear  hefore  us  and  the 
information  was  given  us  in  detail  on  diagrams  by  his  assistant. 
D6ctor  Adler  was  ill  at  the  time  and  was  not  present. 

Mr.  MacChesney: 

That  particular  item  of  Doctor  Adler's  report  has  been  dis- 
cussed heretofore,  and  while  I  could  not  determine  exactly 
whether  the  committee  report  carried  an  endorsement  of  it  or 
not,  I  did  not  think  that  this  Association  should  endorse  that 
statement.  Perhaps  I  came  in  contact  with  the  quality  of  the 
intelligence  of  the  average  enlisted  man  more  than  most  men 
came  in  contact  with  it.  But,  these  so-called  intelligence  tests 
often  determine  the  agility  of  a  man  without  determining  his 
intelligence,  and  to  state  that  an  average  inmate  of  the  criminal 
institutions  of  the  State  of  Michigan,  or  any  other  state,  has  the 
same  average  of  intelligence  as  the  average  enlisted  man  of  the 
late  war  is  an  insult  to  the  American  Army  and  is  not  true.  I 
have  seen  some  of  these  tests  applied.  I  remember  one  of  these 
tests  was  applied  in  my  own  city  where  one  of  the  most  dis- 
tinguished legal  scholars  in  this  country,  and  a  bishop  of  the 
Episcopal  Church,  now  on  the  Pacific  Coast — both  of  them  took 
the  test,  and  both  of  them  failed  on  the  ten-year  old  test.  I  am 
not  trying  to  discredit  the  test,  I  am  merely  saying  that  any 
general  conclusion  based  on  such  a  test,  and  currency  given  to 
such  conclusion  is  unfair,  and  I  hope  the  committee,  by  the 
presentation  of  this  very  splendid  and  unusually  carefully  pre- 
pared report,  will  not  be  taken  to  have  endorsed  that  statement. 

C.  S.  Whitman: 

I  am  perfectly  willing  to  answer  that.  Of  course,  this  involves 
AO  moral  test.  The  statements  were  made  before  our  committee, 
both  pro  and  con,  that  the  average  prisoner  was  mentally  defi- 
cient. I  have  not  any  hesitancy  for  myself,  from  my  own 
experience,  in  stating  to  you  and  to  this  audience  that,  as  far  as 


BBP0BT8  OF  OOKlflTTKBS.  75 

the  mentality  and  the  ability  to  distinguish  between  right  and 
wrong  is  concerned,  I  believe  the  intelligence  of  the  average 
prisoner  before  the  Bar  where  I  prosecnted  in  New  York  City 
is  fully  np  to  the  average  intelligence  of  this  audience  tonight. 
I  am  not  speaking  of  the  moral  qualities  at  all.  I  agree  with 
you  entirely  and,  of  course,  we  don't  endorse,  necessarily,  any 
of  the  testimony  that  is  presented.  Doctor  Adler  made  this 
observation,  as  his  representative  stated,  after  nearly  a  year's 
investigation.  It  was  simply  an  answer  to  the  statement  made 
before  onr  committee  by  another  distinguished  psychologist, 
that  every  criminal  was  mentally  deficient.  Both  statements 
were  made,  ladies  and  gentlemen,  and  it  is  within  the  province 
of  the  American  Bar  Association  to  accept  either  one.  We  do 
•  not  endorse  either  one,  necessarily,  of  conrse,  but  that  is  the 
evidence  before  this  committee,  but  I  am  perfectly  willing  to 
testify  as  an  expert  on  that  subject  myself. 

Mr.  MacChesney: 

There  are  two  other  points  in  the  report  to  which  I  would 
like  to  direct  attention.  The  second  one  of  them  is  that  with 
reference  to  the  molly-coddling  of  criminals.  On  that  subject 
the  Bockefeller  Foundation  has  recently  appropriated  a  consid- 
erable sum  of  money  to  investigate  what  some  of  the  underlying 
causes  of  the  present  crime  wave  are.  If  the  word  "  criminal " 
is  nsed  in  a  technical  sense,  meaning  the  treatment  of  the  men 
after  conviction,  I  take  the  liberty  of  diflfering  from  the  dis- 
tinguished committee.  It  seems  to  me  that  what  is  needed  is  the 
quick  apprehension  of  criminals,  and  the  vigorous  prosecution  of 
them,  such  as  was  given  by  Whitman  of  New  York  when  he  was 
in  oflSce,  and  I  hope  that  the  statement  of  the  committee  will 
not  tend  to  retard  the  growing  feeling  that  the  treatment  of 
y  criminals,  in  the  case  of  convicted  men  in  institutions  after 

conviction,  should  not  be  any  more  severe  than  it  has  been,  for  it 
has  taken  a  long  process  of  public  education  to  get  attention 
given  to  men  within  the  custody  of  our  institutions.  And  I 
take  it  that  the  molly-coddling  of  criminals  spoken  of  in  the 
report  refers  to  the  haphazard  and  sentimental  way  in  which  the 
apprehension  and  prosecution  of  them  is  dealt  with,  rather  than 
the  molly-coddling  of  the  criminals  after  they  have  been  con- 


76  AMERICAN  BAB  ASSOCIATION. 

victed.  And  a  third  point  to  which  I  desire  to  call  attention 
is  the  reference  in  the  report  with  respect  to  indeterminate  sen* 
tence.  The  committee  unqualifiedly  recommends  that  the  parole 
or  probation  shall  not  apply  to  second  offenders.  I  desire  to  call 
attention  to  the  fact,  as  no  one  knows  better  than  the  distinguished 
gentleman  who  read  the  report^  that  men  are  sometimes  convicted 
under  conditions  which  later  make  it  seem  wise  that  they  should 
be  paroled,  and  that  in  some  of  our  states  attempted  rape-— ex- 
tremely diflBcult  to  prove— constitutes  rape,  so  that  such  a  crime 
ought  not  to  be  brought  within  the  purview  of  that  resolution.  I 
hope  that  the  committee  will  not  make  an  unqualified  recom- 
mendation that  these  laws  shall  apply  in  all  cases  only  to  first 
offenders  because  there  are  cases  where  they  should  likewise 
apply  to  second  offenders,  where  the  first  may  have  been  a  minor 
crime.  It  was  stated  by  the  committee,  I  believe,  that  they 
should  not  apply  at  all  to  those  guilty  of  these  four  crimes 
when,  in  fact,  there  are  occasions  when  they  might,  with  good 
judgment,  well  be  applied,  and  I  have  no  doubt  have  been  under 
the  distinguished  gentleman  who  spoke,  were  applied  in  his 
State  of  New  York.  I  would  be  glad  to  hear  from  the  conMnittee 
on  those  two  further  suggestions. 

Mr.  Swaney: 

Of  course,  we  made  this  report  with  the  greatest  deliberation 
and  we  propose  to  stand  by  it.  And,  in  addition  to  that,  there 
is  a  power  reserved  and  placed  in  our  Constitution  for  mistakes, 
misfortunes  and  miscarriages  of  justice.  The  governor  has  the 
power  to  pardon,  and  I  take  it  in  the  case  referred  to  by  the 
gentleman,  the  governor  would  be  the  proper  authority.  These 
boards  rob  the  governor  of  his  constitutional  power,  and  they 
are  enforced  in  such  a  way  as  simply  to  make  the  administration 
of  the  law  a  jest. 

The  President: 

The  question  then  recurs  upon  the  motion  of  the  gentleman 
from  N*ew  York  that  the  committee  report,  including  its  recom- 
mendation, be  approved  and  adopted.  All  in  favor  of  that 
motion  will  say  aye.  Opposed,  no.  I  think  I  am  safe  in  sayini? 
that  the  motion  is  carried  and  it  is  carried. 

Adjourned  until  Friday,  August  11,  10  A.  M. 


\ 


addbe88  of  nicholas  mubray  butler.  77 

Sbybnth  Session. 

Friday,  August  11,  1922,  10  A.  M. 
The  meeting  was  called  to  order  by  Hugh  Henry  Brown,  of 
Tonopah,  Nevada,  at  10  A.  M.,  in  the  Native  Sons  Hall. 

The  Secretary : 

I  call  your  attention  to  the  motor  trip  this  afternoon  at  two 
o'clock.  The  busses  will  leave  from  the  Montgomery  Street 
entrance  of  the  Palace  Hotel. 

The  Treasurer  asks  me  to  call  your  attention  to  the  dinner 
tickets,  which  on  their  face  give  you  instructions  as  ^p  how  they 
shall  be  exchanged  for  place  cards,  between  6.30  and  7  o'clock 
tonight  at  the  grill  room  of  the  Palace  Hotel. 

We  have  here  applications  from  ninety  members  of  the  Bar, 
duly  certified  by  their  respective  Local  Council,  and  approved 
by  the  General  Council  of  the  Association,  and  recommended  to 
this  body  for  election  to  membership.  They  are  all  duly  certified 
in  accordance  with  the  Constitution.    I  move  their  election. 

The  motion  was  seconded  and  carried. 

Charles  A.  Boston,  of  New  York; 

On  behalf  of  the  Council  of  the  Conference  of  Delegates  from 
state  and  local  bar  associations,  I  would  like  to  announce  that 
an  adjourned  meeting  of  that  Council  will  be  held  in  a  room 
upstairs  in  this  building  on  the  next  floor,  immediately  after 
the  close  of  Dr.  Butler's  address  this  morning,  and  I  hope  that 
every  member  of  the  Council  will  be  present. 

The  Secretary: 

May  I  also  call  attention,  Mr.  Chairman,  to  the  fact  that  tiie 
new  Executive  Committee  to  be  elected  at  this  session  will  meet 
at  two  o^clock,  at  room  2022  of  the  Palace  Hotel,  and  that 
chairmen  of  sections  or  conmiittees  desiring  at  this  meeting  to 
make  application  for  appropriations  for  their  respective  sections 
or  committees  during  the  coming  year,  may  appear  before  the 
Executive  Committee  at  that  time  and  place. 

Chairman  Brown: 

The  subject  for  this  morning's  address  is  ^*  Preliminary  Edu- 
cation for  Lawyers."  I  have  the  honor  to  present  Nicholas 
Murray  Butler,  of  New  York. 


78  AKBBIOAN   BAR  AS800IATI0N. 

Dr.  Butler  then  delivered  his  address. 
{For  Address,  see  page  278. ) 

Chairman  Brown : 

President  Severance  will  now  assume  the  Chair. 

The  President: 

I  will  recognize  the  Chief  Justice  of  the  United  States. 

Chief  Justice  Taf  t : 

I  rise  to  make  a  motion :  That  the  American  Bar  Association 
extend  a  fbrmal  invitation  to  Viscount  Birkenhead,  Lord  Chan- 
cellor  of  England,  to  become  the  guest  of  this  Association  and 
visit  the  Association  upon  the  occasion  of  the  next  annual  meet- 
ing, to  be  held  at  a  place  to  be  determined  by  the  Executive 
Committee. 

The  motion  was  seconded  from  the  floor. 

The  President : 

You  have  heard  the  motion  of  the  Chief  Justice,  which  is,  as 
the  Chair  understands  it,  that  a  cordial  invitation  be  extended 
to  Viscount  Birkenhead,  the  Lord  Chancellor  of  England,  to 
be  the  guest  of  the  Association  at  the  next  annual  meeting  of 
the  Association  in  1923.  All  in  favor  of  that  motion  will  rise. 
You  may  be  seated.  All  opposed  may  arise.  It  is  unanimously 
adopted. 

Is  Mr.  John  B.  M.  Baxter,  of  Nova  Scotia,  in  the  room? 
Mr.  Baxter,  your  presence  is  desired  on  the  platform.  I  am  not 
going  to  call  on  our  guest  from  Nova  Scotia  to  speak  now, 
gentlemen,  as  you  will  hear  from  him  tonight.  I  will  simply 
state  for  your  information,  if  any  of  you  happen  to  be  ignorant 
of  the  fact,  that  Mr.  Baxter  is  here  as  the  duly  accredited, 
and  much  beloved  representative  of  the  Canadian  Bar. 

We  will  now  listen  to  a  report  of  the  Executive  Committee. 

The  Secretary: 

By  authority  of  the  Executive  Committee,  the  following 
resolution  is  recommended  to  the  Association  for  adoption: 

Whebbas,  a  proposition  is  being  urged  upon  the  people  of  the  United 
States  to  paas  an  amendent  to  the  Federal  Constitution,  under  the 


BHPOBTS  OF   COMMITTEES.  79 

terms  of  which  the  courts  shall  be  deprived  of  their  power  finally  to 
decide  as  to  the  constitutionality  of  legislative  enactments,  by  giving 
to  the  Congress  the  power  to  annul  or  veto  any  decision  of  the  Federal 
Supreme  Court  declaring  a  Federal  Statute  unconstitutional,  or  by 
making  aiw  such  judicial  decision  subject  to  recall  by  legislative  or 
popular  referendum;  now,  therefore,  be  it 

Resolved,  Bjr  the  American  Bar  Association,  that  we  express  our  un- 
qualified opposition  to  such  constitutional  amendment,  or  to  any  amend- 
ment of  similar  character,  as  a  most  dangerous  menace  to  our  American 
Government  and  to  American  institutions. 

I  move  the  adoption  of  the  resolution,  Mr.  Chairman. 

The  motion  was  seconded  from  the  floor  and  unanimously 
adopted. 

Membenhip  Committee: 

Frederick  E.  Wadhams,  of  New  York,  submitted  a  report 
on  behalf  of  the  Membership  Committee. 
{See  Report,  page  S89,) 

The  President: 

The  report  requiring  no  action,  it  will  be  placed  on  file. 

Committee  on  Admiralty  and  Maritime  Law: 

E.  J.  McCutchen,  of  California : 

In  the  absence  of  Mr.  Hughes,  the  Chairman  of  this  com- 
mittee, I  have  been  reqiiested  to  present  the  committee's  report. 
Under  the  By-Laws,  it  is  not  appropriate,  as  I  understand,  to 
refer  to  any  portion  of  this  report,  except  a  recommendation 
contained  in  it,  which  is  that  the  Association  approve  a  bill 
pending  in  the  House  of  Representatives,  by  which  it  is  pro- 
vided that  suit  may  be  brought  in  admiralty  against  the  United 
States,  in  order  to  enforce  rights  growing  out  of  collisions  be- 
tween war  and  navy  vessels  of  the  United  States  and  vessels 
privately  owned,  and  in  order  to  enforce  claims  for  salvage 
service.  Under  the  law  as  it  now  exists,  no  such  suit  can  be 
brought.  The  report  of  the  committee  states  that  suits  of  this 
nature  may  be  brought  in  the  maritime  nations  of  Europe  and 
in  Qreat  Britain.  Under  present  conditions,  should  a  claiih 
of  this  nature  arise,  in  order  that  it  may  be  enforced,  it  is 
necessary  that  a  special  act  of  Congress  be  first  passed,  and  of 


80  AMBRICAN   BAR  ASSOGUTION. 

course  we  all  know  how  difficult  it  is  to  secure  the  passage  of 
such  an  act.  The  report  of  the  committee  recommends  that  the 
Association  approve  the  bill,  and  authorize  the  committee  to  urge 
its  passage  before  Congress.    I  move  that  this  report  be  adopted. 

The  motion  was  seconded  and  carried. 
(See  Report,  page  367*) 

Committee  on  Noteworthy  Changes  in  Statute  Law: 

William  Marshall  Bullitt,  of  Kentucky : 

The  Committee  on  Noteworthy  Changes  in  Statute  Law  begs  to 
report  that  the  work  of  the  committee  is  progressing,  but  that, 
owing  to  the  very  late  date  at  which  the  printed  acts  of  the 
Legislatures  have  been  submitted  to  the  committee,  it  has  been 
impossible  to  prepare  a  report  at  this  time.  But  it  is  hoped  and 
expected  that  such  a  report  will  be  included  in  the  printed  pro- 
ceedings. 

The  President : 

Is  there  any  objection  to  the  approval  of  this?  If  not,  it  will 
stand  approved. 

Committee  on  Uniform  Judicial  Procedure: 

Thomas  W.  Shelton,  of  Virginia : 

This  committee  is  one  that  needs  to  become  very  close  to  the 
members  of  this  organization,  in  order  that  we  may  move  as  we 
should.  It  was  with  a  great  deal  of  pleasure  and  gratification  that 
we  of  the  committee  noticed  how  closely  the  members  of  the 
Association  listened  to  the  Chief  Justice  in  his  address  about 
reform  of  procedure  of  the  courts.  In  order  to  carry  out  his 
program,  and  the  program  for  which  we  have  been  laboring  for 
about  fifteen  or  sixteen  years,  it  is  absolutely  essential  to  have 
certain  legislation,  though  it  is  very  simple  legislation.  It  is, 
however,  the  most  difficult  thing  on  the  face  of  the  earth  to  move 
Congress,  not  that  they  are  not  in  favor  of  such  legislation,  be- 
cause we  know  better,  we  know  that  both  the  Senate  and  the  House 
are,  by  a  very  large  majority,  in  favor  of  this  matter.    But,  for 


BBPOBIS  OF  GOKHirms.  81 

some  curiouB  reason  which  no  human  being  has  eyer  been  able  to 
understand,  two  or  three,  or  not  over  four,  Senators  of  the  United 
States  are  able  to  control  the  legislation  concerning  this  matter, 
to  the  extent  that  they  have  absolutely  prevented  a  report  being 
made  from  the  Judiciary  Committee  of  the  Senate.  There  was 
one  time  that  we  were  able  to  get  a  favorable  report  from  the 
Senate  Judiciary  Committee  on  the  matt^,  but  we  got  it  out  of 
con^mittee  too  late  to  get  it  acted  upon  on  the  floor  of  the  Senate. 

That  ifi  the  exact  status  of  our  work.  The  business  of  this 
committee  and  the  object  of  this  committee  in  this  regard  is  to 
try  to  move  Congress  to  action  upon  the  subject.  We  became 
satisfied  that  we  could  not  do  it  without  your  help  as  an  Associa- 
tion.   With  your  help,  we  can  do  it. 

We  are  going  to  make  this  suggestion,  that  you  will  take  up 
the  resolution  which  the  Executive  Committee  of  this  Bar  Asso- 
ciation adopted  at  Tampa,  in  January  last,  in  which,  while  they 
did  not  exactly  censure  the  Senate  Committee,  because  they  felt 
that  that  would  perhaps  be  lise-majeste,  they  suggested  to  them 
that  they  have  been  very  disrespectful  to  the  American  Bar  Asso- 
ciation, and  had  been  lacking  in  common  respect  for  the  great 
majority  of  the  people  of  this  country,  who  wanted  the  thing  done 
that  had  been  endorsed  by  Mr.  Taft  when  he  was  President  of 
the  United  States,  and  now  has  been  endorsed  here  by  him  in 
a  complete  program. 

That  is  the  matter  we  have  before  you  today.  And  as  Chair- 
man of  our  committee,  I  want  to  ask  you  individually,  that  you 
get  into  close  contact  with  your  two  senators  and  your  members 
of  the  lower  House,  and  see  that  they  understand  that  what  we 
want  is  to  get  this  matter  reported  out,  even  though  the  particular 
individual  may  be  opposed  to  it.  A  great  senator  from  this  state, 
whom  we  look  up  to  with  respect,  is  opposed  to  it.  And,  as  T 
say,  the  matter  has  been  held  in  committee  and  not  reported  out. 
We  have  thought  that  it  is  just  possible  that  if  enough  pressure 
is  brought  to  bear  upon  these  senators,  particularly,  who  want  to 
hold  the  matter  in  committee,  we  might  be  successful  in  getting 
it  out,  and  I  feel  satisfied  that  its  passage  would  be  assured. 

We  have  two  or  three  motions  to  put  before  you,  but  before 
doing  that,  I  want  to  get  clearly  before  you  just  what  the  com- 
mittee is  trying  to  do.    The  bill  before  Congress  is  nothing  more 


82  AMBBICAN   BAB  ASSOCIATION. 

than  this:  A  bill  to  vest  in  the  Supreme  Court  of  the  United 
States  the  power  to  make  roles  for  the  regulation  of  the  law  side 
of  the  courts  just  as  it  always  has  had  the  power  to  make  rules 
of  practice  for  the  equity  side  of  the  court,  and  of  course  the  ad- 
miralty and  bankruptcy  and  many  others.  That  is  all  there  is 
to  it.  There  will  be  another  bill  introduced,  in  order  to  carry 
out  the  views  that  the  Chief  Justice  suggested  to  you  yesterday, 
because  that,  as  you  of  course  understand,  was  the  ultimate  pur- 
pose, the  obvious  nature  of  the  power  that  should  have  been  vested 
in  the  court.  We  ask  you  to  adopt  three  simple  little  resolutions 
and  continue  the  committee,  and  in  the  third  place  we  ask  that 
there  be  left  to  this  committee  a  resolution  which  you  adopted 
yesterday  supporting  the  Chief  Justice. 

The  motion  was  seconded  and  carried. 
(See  Report,  page  S70.) 

Committee  on  Change  of  Date  of  Presidential  Inauguration : 

The  Secretary  then  read  a  letter  from  William  L.  Putnam 
reporting  progress  and  suggesting  the  continuance  of  the  Com- 
mittee. 

The  President: 

As  I  understand  it,  the  report  merely  asks  that  the  committee  be 
continued,  and  that  the  matter  be  referred  to  it.  If  there  is  no 
objection,  it  will  be  so  ordered.    And  it  is  so  ordered. 

Committee  on  Classification  and  Restatement  of  Law: 

James  D.  Andrews,  of  New  York : 

Mr.  Chairman,  I  have  requested  the  Secretary  of  the  Associa- 
tion to  read  the  resolution,  indicating  the  action  of  the  Executive 
Committee  in  reference  to  this  subject,  and,  after  listening  to 
that,  I  shall  then  present  the  report  of  the  committee  and  its 
recommendations. 

The  President : 

This  report  has  been  printed  for  some  time,  and  I  have  no 
doubt  that  you  have  all  read  it.  It  embodies  the  resolution  which 
has  been  the  subject  of  action  by  the  Executive  Committee. 


BBPOBTS  OF  00MHITTSB8.  83 

The  Secretary  : 

The  resolution  recommended  by  Mr.  Andrews'  committee  is 
on  page  111  of  the  advance  pamphlet,  and  it  is  as  follows : 

Resolved.  That  the  report  of  the  Special  Committee  on  the  Classi- 
fication and  Restatement  of  the  Law  be  received  and  adopted,  and  that 
said  committee  be  continued  and  made  a  standing  committee  of  this 
Association,  and  directed,  in  conjunction  with  the  Executive  Committee, 
to  cooperate  with  the  Committee  of  the  American  Academy  of  Juris- 
prudence in  the  plans  and  work  of  clsjasifying  and  restating  the  law. 

At  the  request  of  Mr.  Andrews,  I  present  this  resolution  of 
the  Executive  Committee  at  this  time,  in  advance  of  his  discussion 
of  the  committee's  report,  so  that  you  may  all  know  of  the  un- 
favorable attitude  of  the  Executive  Committee  toward  the  adop- 
tion of  the  committee's  resolution.  The  Executive  Committee 
recommends  to  the  Association  the  adoption  of  the  following 
substitute  resolution : 

Whereas,  It  is  the  opinion  of  the  Executive  Committee  that  it  is  not 
expedient  for  the  American  Bar  Association  to  endorse  at  this  time  an^ 
specific  plan  or  work  of  classifying  and  restating  the  law,  therefore,  be  it 

Resolved,  That  the  American  Bar  Association  disapproves  of  anfi 
rejects  the  recommendation  and  resolution  as  proposed  by  the  report 
to  be  presented  at  this  meeting  by  the  Special  Committee  on  Classi- 
fication and  Restatement  of  the  Law.'^ 

The  President: 

The  parliamentary  status  of  the  matter  at  the  present  time, 
as  it  appears  to  the  Chair,  is  this :  Mr.  Andrews'  committee  moves 
the  adoption  of  the  resolution  contained  in  the  committee's  report. 
As  a  substitute,  the  Executive  Committee  moves  the  adoption  of 
the  resolution  which  has  just  been  read  by  the  Secretary.  There- 
fore there  is  pending  before  the  house  the  question  of  the  adoptiop 
of  the  substitute  resolution  proposed  by  the  Executive  Com- 
mittee in  the  matter. 

Henry  W.  Taf t,  of  New  York : 

I  move  that  the  action  of  the  Executive  Committee,  be  ratified 
and  adopted  as  the  action  of  the  Association. 

The  President: 

That  is  the  very  motion  that  is  pending  already.  This  was 
put  in  the  form  of  a  substitute  resolution  offered  by  the  Executive 
Committee. 


84  AMERICAN   BAR  ASSOCIATION. 

Mr.  Taft: 

Then  I  second  that  resolution. 

The  President : 

Now  Mr.  Andrews^  you  have  the  floor. 

Mr.  Andrews  : 

I  wish  to  present  to  you  the  action  which  has  been  heretofore 
taken  by  the  American  Bar  Association  and  by  the  Executive 
Committee  of  the  American  Bar  Association,  in  reference  to  this 
matter,  and  then  to  explain  to  you  what  has  been  done  by  this 
Executive  Committee,  and  to  submit  to  you  the  resolution 
embodied  in  the  report — ^mark,  I  say  the  resolution  embodied  ia 
the  report;  the  motion  is  not  that  we  adopt  the  report  in  ioto,  be- 
cause, since  the  report  was  written,  a  different  condition  of 
affairs  has  come  about. 

The  apparent  effect  of  this  substitute  resolution  recommended 
by  the  Executive  Committee  is  to  undo  all  of  the  work  that  has 
been  done  during  the  last  five  years.  I  believe  that  this  Ameri- 
can Bar  Association,  when  it  takes  action,  should  require  sub- 
stantially logical  and  reasonable  cause  for  the  reactionary  step 
that  is  proposed  to  be  taken.  The  matter  of  the  classiflcation  of 
the  law  came  before  this  body  the  first  time  in  1917,  in  a  resolu- 
tion and  a  committee  was  appointed,  of  which  Mr.  Hampton  L. 
Carson  was  the  Chairman.  In  1919,  in  a  very  able  report,  Mr. 
Carson  distinguished  very  clearly  between  the  subject  of  the  clas- 
sification of  the  law  and  restatement  of  the  law  under  that  classi- 
fication, and  he  recommended  that  this  Bar  Association  do  take 
up  the  work  and  continue  the  work  of  the  classification  of  the 
law,  and  leave  the  subject  of  the  restatement  of  the  law  to  a  sub- 
sequent report.  Later  Mr.  Carson  was  elected  President  and 
I  was  then  made  the  Chairman  of  th^  committee.  In  1920,  the 
committed  reported,  offering  this  resolution : 

That  the  report  of  the  Committee  on  Classification  and  Restatement 
be  received  and  adopted,  and  that  said  committee  be  continued,  and 
that  it  be  and  is  hereby  authorized  and  directed,  in  conjunction  with 
the  Executive  Committee,  to  take  such  steps  as  may  be  deemed  neces- 
sary and  expedient  to  co-operate  with  anybody  which  has  for  its  pur- 
pose the  carrying  on  of  the  proposed  work  of  the  classification  and  re- 
statement of  the  law. 


BSPOBTS  OF   GOMMITTBES.  85 

That  committee^  after  colnmentiiig  upon  the  growing  con- 
fusion of  the  law^  and  the  fact  that  there  had  been  no  con- 
certed action  on  the  part  of  any  body  competent  to  do  a  work  of 
that  kind^  stated  its  opinion  to  be  as  follows : 

It  seems,  therefore,  to  your  committee  that  the  drift  of  the  law 
towards  imcertainty,  confusion,  and  variation,  is  progressing,  and  that 
the  time  has  come  to  take  the  necessary  steps  to  inaugurate  an 
organized  and  permanent  effort  to  improve  the  American  legal  system 
in  all  its  parts  and  as  a  whole. 

Now^  the  members  of  the  Committee^  aside  from  the  Chairman, 
were  Adolph  J.  Bodenbeck^  a  gentleman  who  has  had  experience 
in  the  line  of  consolidation  and  restatement  of  the  law  of  the 
State  of  New  York,  on  the  Commission  of  Consobdation  of  the 
Law;  Frederick  W.  Lehmann,  once  the  President  of  this  Associa- 
tion and  a  very  distinguished  lawyer;  Samuel  Williston,  of 
Harvard  University;  David  W.  Amram,  of  Pennsylvania;  Edgar 
A.  Bancroft,  of  Chicago ;  Roscoe  Pound,  then  and  now  Dean  of 
the  Harvard  Law  School ;  Harlan  F.  Stone,  then  the  Dean  of  the 
Law  School  of  Colimibia  University;  and  Edmund  F.  Trabue. 
The  action  of  the  American  Bar  Association  at  that  time  consti- 
tutes the  action  of  this  body. 

Pursuant  to  that  direction,  the  matter  was  subsequently  laid 
before  the  Executive  Committee  of  the  American  Bar  Association, 
and  this  is  the  action  taken  by  the  Executive  Committee  of  the 
American  Bar  Association,  as  appears  from  this  letter  written  to 
me  by  Mr.  Kemp,  under  date  of  April  27,  1921.  (A  letter  from 
the  Secretary  was  then  read  quoting  the  resolutions  approved  by 
the  Executive  Committee  and  heretofore  reported  in  1921  Report 
page  482.) 

These  resolutions  of  the  Executive  Committee  were  in  accor- 
dance with  and  carrying  forward  this  great  work,  and  these  resolu- 
tions distinguish  very  carefully  between  specific  plans  for  classifi- 
cation and  specific  plans  for  organization  for  the  purpose  of 
co-operation.  And  so  far  as  the  opinion  and  action  of  the  Execu- 
tive Committee  at  that  time  is  concerned,  it  is  full  and  conclusive. 

I  wish  to  say  that  the  reference  in  this  letter  to  the  fact  that 
the  resolution  offered  to  them  had  been  modified,  refers  to  the 
proposition,  for  the  first  time  appearing  in  the  plans  for  the 
carrying  out  of  this  work,  of  the  inauguration  of  a  corporation 
to  do  the  business  part  of  the  work,  "  but  that  the  formation  of 


86  AMERICAN   BAB  ASSOCIATION. 

any  corporation  would  be  a  matter  for  individuals  rather  than 
for  this  Association/' 

For  the  purpose  of  carrying  out  the  practical  working  of  a 
systematic  restatement,  a  corporation  called  the  Academy  Pub- 
lishing Company,  was  formed,  and  the  formation  of  that  corpora- 
tion necessitated  the  submission  of  plans  of  action.  In  the  exercise 
of  caution,  and  for  the  purpose  of  securing  the  action  of  a  con- 
servative committee  and  of  keeping  matters  within  limits,  within 
bounds  that  would  be  satisfactory  to  the  Executive  Committee  of 
the  American  Bar  Association,  and  therefore  satisfactory  to  the 
American  Bar,  I  submitted  to  the  Executive  Committee  at  Tampa, 
Florida,  in  January,  last,  a  proposal  that  the  Committee  appoint 
a  sub-committee  to  pass  upon  the  plans  of  organization,  the  man- 
ner in  which  the  stock  of  the  corporation  should  be  trusteed  for 
the  benefit  of  the  American  Bar  Association,  and  to  exercise  their 
censorship  in  whatsoever  way  they  saw  fit. 

Now,  in  order  that  you  may  understand  the  purport  of  this 
proposition,  it  is  this:  The  Bar  Association,  after  having  had 
this  matter  before  it  for  thirty  years  on  and  off,  and  for  four  years 
of  that  time  intensive  and  careful  study  having  been  given  it, 
proposed  this  plan  of  organization.  It  was  proposed  that  this 
business  organization  should  be  incorporated  for  the  purpose,  of 
course,  of  conducting  business  which  this  Association  is  not 
organized  or  adapted  to  conduct.  We  recognize  the  practical 
proposition  that  any  restatement  of  the  law  that  can  be  made 
must  be  made  in  the  shape  of  the  written  page,  and  that  to  carry 
out  the  spirit  of  the  American  Bar,  to  have  a  statement,  a  uniform 
conception,  of  what  our  law  is,  it  must  take  the  form  of  a  complete, 
systematic  restatement  of  the  law.  And  vnth  that  proposition, 
one  hundred  of  the  greatest  jurists  in  this  country,  and  four  or 
five  of  the  greatest  jurists  of  the  world,  have  been  in  entire  accord, 
many  of  them  stating  that  the  primary  benefit  of  this  organiza- 
tion was  not  so  much  a  benefit  to  the  Bar  as  a  great  public  service 
to  the  people,  by  rendering  their  law  certain,  specific,  and 
definite. 

To  that  end,  this  organization  was  devised  for  the  purpose  of 
organizing  and  mobilizing  the  best  brain  power  of  the  members 
of  the  Bar  upon  this  proposition.  To  that  end,  it  was  designed 
that  we  would  organize  and  mobilize  the  resources  of  the  Bar, 


REPORTS  OF   G0MMITTBE8.  87 

financial  and  intellectual^  in  order  that  they  may  exercise,  during 
the  process  of  the  construction  of  the  work  and  before  it  was 
published^  a  censorship^  beneficent,  specific,  and  complete  in 
detail. 

With  that  in  view,  we  have  marched  forward  steadily,  cau- 
tiously, conservatively.  This  sub-committee  of  the  Executive 
Committee  came  to  my  oflBce  in  New  York,  and  by  the  way,  let 
me  go  back  a  moment  and  say  that,  before  Mr.  Carson's  com- 
mittee took  any  action  at  all,  they  employed  a  distinguished 
professor,  whose  name  is  universally  known  here,  Professor 
Edwin  M.  Borchard,  of  Yale,  to  spend  the  time  to  make  a  de- 
tailed examination  of  the,  plans  and  the  material  and  the  sug- 
gestions— ^the  whole  proposition.  Professor  Borchard  spent  two 
weeks,  made  his  report,  and  following  that  was  the  report  of  the 
committee  made  by  Chairman  Carson.  Following  the  meeting 
in  January  of  this  year,  this  sub-committee  came  to  my  oflBce 
for  the  specific  purpose  of  examining  into  whether  or  not  the 
preparation  by  way  of  material,  of  plans  of  classification,  of 
plans  of  organization,  was  rational  and  might  be  with  propriety 
approved,  and  whether  the  trusteeing  of  the  stock  for  the  benefit 
of  the  Jurisprudence  Fund,  which  should  simply  and  perpetu- 
ally and  forever  support  a  continuous  and  uninterrupted  and 
intensive  study  of  this  work  should  be  made.  That  committee 
spent  two  days  in  New  York.  That  committee  expressed  it- 
self at  that  time  as  being  entirely  satisfied  with  the  plans, 
with  the  materials,  and  that  our  preparation  was  adequate, 
the  other  committee  having  reported  that  we  had  a  vast  amount 
of  material  collected  and  arranged  and  organized,  and  that 
we  had  all  the  plans  of  classification  that  had  been  printed 
in  English  collected  for  the  purpose  of  comparison  and  con- 
sideration by  the  committee,  during  the  next  year  which  was 
to  be,  according  to  the  plans,  the  work  of  the  committee^  that 
of  formulating  the  plans.  The  members  of  that  committee,  Mr. 
Brosmith  and  Mr.  Shelton,  not  only  expressed  their  approval, 
but  since  that  time  they  have  written  me  that  their  report  would 
be  a  favorable  one,  but  they  also  signed  the  order  for  a  set  of 
the  books,  according  to  the  plan  upon  which  it  was  based.  I 
was  unable  to  secure  a  copy  of  the  report  which  was  submitted 
by  this  committee  to  the  Executive  Committee,  and  I  observed 


88  AMEHIOAN   BAB  ASSOCIATION. 

in  the  reading  of  the  proceedings  of  the  Executive  Committee 
that  that  action  and  that  report  were  omitted  from  the  report 
of  the  committee. 

Now,  gentlemen,  the  Executive  Committee  of  the  American 
Bar  Association — well,  it  is  a  very  powerful  body.  The  Execu- 
tive Committee  of  this  Association  is  something  more  than  the 
alter  ego,  I  think  it  is  almost  a  del  credere  agent,  I  think  it  is 
assumed  to  be  the  directing  head  entirely  of  the  organization. 
I  am  sorry  for  this  committee — I  am  truly.  They  are  very 
estimable  gentlemen.  They,  on  the  whole,  mean  to  do  right. 
If  they  are  not  coerced  or  frightened,  they  do  generally  do  right. 

I  am  going  to  tell  you  what  has  happened.  Following  the 
action  of  the  Association  of  the  American  Law  Schools,  an 
organization  or  a  proposed  organization  has  been  suggested, 
with  no  very  definite  plans  exceptitig  the  general  plan  which 
is  all  proper  and  definite  enough,  for  the  improvement  of  the 
law  and  litigation,  and  Mr.  Elihu  Eoot  has  been  selected  the 
Chairman.  Out  of  consideration  to  that  proposition,  is  the 
only  reason  that  I  have  heard  suggested  yet,  excepting  the 
proposition  that  the  Executive  Committee  is  not  prepared  to 
go  forward  with  the  business  of  organization  just  as  it  stands, 
why  it  should  not  be  carried  out.  With  the  last  proposition 
stated,  I  am  entirely  in  accord.  We  submitted  it  to  them  for  the 
purpose  of  their  amendment  and  their  approval,  and  if,  after 
their  sub-committee  approves  it,  they  still  feel  that  it  is  impru- 
dent and  imwise  to  proceed,  my  proposition  is  that  they  amend 
it  and  perfect  it.  But  the  idea  that  this  report,  as  a  whole, 
completely,  and  this  whole  project,  shall  be  turned  down,  rejected, 
smothered,  within  the  period  of,  you  may  say,  a  few  weeks — is  a 
proposition  that  I  am  opposed  to  utterly. 

Now,  let  us  see  exactly  what  the  Executive  Committee  of  the 
Bar  Association  means  by  the  proposal  as  read  here  by  the 
Secretary.  Our  law  has  drifted  constantly  and  steadily  to- 
wards confusion;  notwithstanding  all  the  efforts  of  this  Asso- 
ciation for  the  last  forty  years,  our  efforts  in  the  direction 
of  legal  education  have  not  stemmed  the  tide.  And  the  Com- 
mittee on  Classification,  in  which  are  embraced  these  great  legal 
educators,  have  stated  that  the  tendency  is  constantly  towards 
confusion,  and  that  the  sporadic  efforts  of  law  writers  are  not 


RSP0BT8  OF  GOMIUTTBBS.  89 

able  to  stem  it.  Therefore  this  work  haa  been  attempted,  and 
the  committee  asks  the  American  Bar  Association,  that  is,  I 
mean  the  Executive  Committee  asks  the  American  Bar  Asso- 
ciation to  reject  this  report. 

Let  us  see  this  report  again  and  see  what  there  ifi  in  it 
that  can  be  rejected  and  that  must  be  rejected,  of  course,  because 
no  one  would  think  of  going  forward  for  a  moment  where  the 
business  organization  waa  not  approved  in  every  detail  by  the 
Executive  Committee.  The  concrete  and  exact  propostion  be- 
fore us  is :  *'  Resolved,  that  the  report  of  the  Special  Com- 
mittee on  Classification  and  Restatement  of  the  Law  be  received 
and  adopted  and  that  the  said  committee  be  continued,''  and  it 
then  reads,  ^' and  made  a  standing  committee  of  the  Associa- 
tion.*' Of  course  that  last  must  be  stricken  out,  on  the  same 
grounds  that  there  was  stricken  out  of  the  report  made  yester- 
day by  Mr.  Saner  a  certain  reference,  as  it  requires  a  constitu- 
tional amendment  to  make  a  committee  a  standing  committee — 
*'and  directed  to  cooperate  with  the  American  Academy  of 
American  Jurisprudence  in  the  work  of  re-classifying  and  re- 
stating the  law."  The  committee  reported,  as  we  supposed  was 
within  our  province,  *'that  an  organization  has  been  affected 
for  the  performance  of  the  object  in  view.'' 

The  motion  I  desire  to  have  placed  before  the  house  now  is, 
that  these  two  subjects  be  divided,  and  as  a  substitute  for 
both  of  the  motions,  that  for  the  adoption  of  the  committee's 
resolution  and  that  for  the  adoption  of  the  Executive  Committee's 
resolution,  I  move  on  behalf  of  the  committee  that  the  report  of 
the  Special  Committee  on  Restatement  of  the  Law  be  received  but 
not  adopted  as  a  whole.    Do  I  have  a  second  to  that  proposition? 

The  motion  was  seconded  from  the  floor. 

The  President: 

Is  there  any  objection  on  the  part  of  the  Association  to 
receiving  the  report?  If  not,  it  will  be  understood  to  be  re- 
ceived and  filed.  The  report  is  received,  but  not  acted  upon, 
and  the  motion  is  still  before  the  house  on  the  substitute  as 
submitted  by  the  Secretary  on  behalf  of  the  Executive  Com- 
mittee. 


90  AMERICAN  BAR  ASSOCIATION. 

Mr.  Andrews : 

I  move  further  that  the  committee  be  directed,  in  conjunction 
with  the  Executive  Committee,  to  cooperate  with  the  Committee 
of  the  American  Academy  of  Jurisprudence  in  the  plans  and 

work  of  classifying  and  restating  the  law. 

« 

The  President : 

You  have  heard  the  motion  made  by  the  Chairman  of  the 
committee,  which  he  offers  as  a  substitute  for  the  motion  of 
the  Secretary,  made  on  behalf  of  the  Executive  Conimittee. 
Are  there  any  remarks  upon  that  motion  ? 

Garrett  W.  McEnemey,  of  California: 

The  question  is  on  the  substitute,  Mr.  President? 

Mr.  Andrews: 

The  motion  I  am  now  taking  is  as  a  substitute,  Mr.  President. 

George  W.  Wickersham,  of  New  York : 

I  oppose  the  resolution  of  the  special  committee  and  advocate 
the  adoption  of  the  resolution  recommended  by  the  Executive 
Committee.  I  think  the  Convention  will  not  have  failed  to 
notice  that  this  Association  shall  '^  cooperate  with  the  American 
Academy  of  Jurisprudence  "  in  this  matter  of  a  restatement  of 
the  law.  No  one  will  dispute,  I  take  it,  Mr.  President,  at  this 
time,  the  advantage  or  the  necessity  of  a  scientific  restatement 
and  classification  of  the  law.  The  real  question  is  whether  that 
shall  be  done  as  a  commercial  matter,  this  Association  taking  part 
in  a  commercial  enterprise,  or  whether  it  shall  be  done  under 
appropriate  conditions,  in  a  scholarly  way,  as  a  matter  of  sound 
legal  scholarship.  I  suppose  that  all  the  members  of  the  Associa- 
tion have  received  a  pamphlet  which  is  widely  circulated  and  which 
IS  really  at  the  base  of  this  proposal,  entitled,  "  A  Classification 
and  Eestatement  of  the  Law,  under  Cooperative  Direction  of  the 
American  Bar  Association  and  the  American  Academy  of  Juris- 
prudence. Issued  by  the  Academy  Publishing  Corporation,  of 
New  York.*'  There  is  set  forth  the  plan  which  is  proposed,  in 
effect,  by  the  resolution  offered  by  the  committee  and  supported  by 
Mr.  Andrews,  and  the  plan  is  set  forth  on  another  page  of  this 
pamphlet,  where  it  is  shown  that  a  business  organization  has 


BHP0BT8  07  C0MMITTBB8.  91 

been  organized^  known  a^  the  Academy  Publishing  Corporation, 
three-fifths  of  whose  stock  was  to  be  held  in  trust  for  the  Ameri- 
can Academy  of  Jurisprudence — and  there  is  no  statement  as 
to  what  that  body  is  or  as  to  who  compose  it — and  two-fifths 
of  it  was  to  be  held  in  trust  for  the  American  Bar  Association. 

That  is  a  familiar  plan  of  publication.  A  selected  list  of 
gentlemen  has  been  made  who  axe  offered  the  privilege  of  sub- 
scribing $800  each  to  the  purchase  price.  But  the  significant 
thing  is  that  there  is  nowhere  a  statement  of  when  or  what  the 
subscribers  are  to  get  for  their  money,  and  the  entire  contributed 
fund  may  be  spent  and  nothing  returned  to  the  subscribers. 
Viewing  this  as  a  commercial  enterprise,  it  is  radically  defec- 
tiye  in  that  particular — ^that  the  money  may  be  collected  and 
spent  and  nothing  given  to  the  subscribers.  If  the  enterprise  is 
to  be  conducted  in  a  scientific  manner,  there  should  be  a  different 
organization. 

I  take  it,  Mr.  President,  that  when  this  resolution  was  pre- 
pared by  the  Executive  Committee,  it  had  read  and  considered 
the  matter,  and  felt,  as  I  have  no  doubt  every  member  of  the  Bar 
who  reads  this  must  feel,  that  it  was  not  such  a  project  as  the 
American  BUr  Association  should  commit  itself  to. '  Therefore, 
Mr.  President,  I  earnestly  advocate  the  adoption  of  the  resolu- 
tion recommended  by  the  Executive  Committee. 

)Ir.  Andrews : 

The  first  proposition  made  by  the  learned  gentleman  is  that 
this  should  not  be  a  matter  of  commercialism.  The  question 
of  what  is  and  what  is  not  commercialism  has  been  xmder  dis- 
cussion, for  the  last  ten  years,  ever  .since  the  "  Green  Bag  ^ 
exposition,  in  which  some  attempt  was  made  at  an  organization 
which  should  exclude  commercialism — that  was  the  key,  the 
very  heart  of  the  covenant — ^and  it  was  to  be  excluded  in  this 
case  by  the  very  means  which  we  have  taken. 

Now,  what  do  we  mean  by  '^  removed  from  the  pain  and  terror 
of  commercialism '' ?  Namely,  that  persons  indifferent  to  the 
integrity  and  the  improvement  of  the  law  should  direct  and 
should  make  the  manuscript,  and  that  the  funds  which  should 
arise  from  the  sale  and  distribution  of  bodes,  because  there  is 
no  dreamer  so  wild  as  to  suppose  that  imder  any  foundation  or 


93  AMBRICAN  BAB  ASSOCIATION. 

any  plan  of  governmental  or  state  action,  a  corpus  juris  or 
a  book  of  law  in  this  country  can  be  created  and  distributed 
free  and  without  price — it  must  be  created  according  to  business 
methods,  it  must  be  sold.  But  the  body  that  furnishes  the 
money  will  always  control,  and  if  the  American  Bar  furnish 
the  money,  as.  it  is  proposed  in  this  case,  they  will  control 
through  the  American  Bar  Association,  have  absolute  control 
and  direction  of  this  work,  and  the  profits  which  shall  arise 
from  this  foundation  are  to  be  placed,  the  stock  is  to  be  trusteed 
in  the  hands  of  trustees  selected  by  the  American  Bar  Asso- 
ciation, the  sole  profit  to  go  as  an  endowment  or  jurisprudence 
foundation  for  the  benefit  of  the  Bar,  for  the  improyement  of 
the  law,  and  for  the  benefit  of  the  public.  And  that  this  was 
considered  important  and  rational,  I  will  show  you  by  the  action 
that  we  took  in  the  formation  of  the  organization  known  as  the 
"  Academy  Publishing  Company.''  It  had  to  be  a  corporation, 
and  it  had  to  have  a  name,  the  statute  so  required,  and  it  had  to 
have  officers  and  had  to  have  capital  and  that  capital  had  to  be 
fully  paid,  beyond  any  dispute.  This  is  a  letter  of  April  9, 1921, 
addressed  to  me  as  Chairman  of  the  Organization  Committee, 
American  Academy  of  Jurisprudence,  and  reading? 

Mt  DEAB  Snt: 

I  have  considered  the  matter  of  the  oiganization  of  the  Academy 
Publishing  Corporation,  which  is  a  work  in  conjunction  with  Uie 
American  Academy  of  Jurisprudence,  in  the  publication  of  the  classi- 
fication and  restatement  of  law,  since  my  talk  with  you  in  Albany  a  short 
time  aco.  I  write  to  say  to  you  that,  if  the  Academy  Publishing  Com- 
pany aesires  me  to  act  as  treasurer,  and  one  of  the  directors  of  such 
organization,  I  shall  be  pleased  to  serve  in  such  capacity,  and  will 
do  what  I  can  toward  the  success  of  the  importanii  work  attending  the 
classification  and  restatement  of  the  law. 

Very  truly  yours, 

Fbedbbick  £,  Wadhams. 

We  selected  for  your  benefit,  in  order  that  there  should  be  no 
chance  whatever  for  even  a  suspicion  of  a  diversion  of  the  funds, 
the  Treasurer  of  the  American  Bar  Association  to  handle  those 
funds. 

Now,  on  the  proposition  that  there  may  be  something  paid 
without  getting  anything  for  it.  The  plan  is  carefully  guarded 
in  that  respect — most  carefully  guarded  in  that  respect — and 
the  specific  contract  is  contained  in  the  order,  not  explained  in 
detail  in  the  pamphlet.    The  plan  is  that  when  you  have  received 


BBPORTS  OF  COMMITTEES.  93 

contributions  of  exactly  the  same  kind  that  sixty  or  seventy  of 
the  great  lawyers  of  this  country  have  made,  you  would  have 
in  the  treasury  of  the  organization  $400,000,  out  of  subscriptions 
at  $500  each — ^more  capital  than  was  ever  put  before  this  organi- 
zation, and  there  never  was  a  book  of  this  character  that  was 
started  for  sale  but  was  started  on  subscriptions,  and  never 
did  one  of  them  have  a  single  page  other  than  proposed  sample 
pages  of  the  proposed  book.  The  American  Bar  Association 
in  the  last  thirty  years  has  paid  out  $90,000,000  for  law  books. 
They  pay  out  annually  about  $4,000,000  for  law  books.  They 
pay  out  annually  about  $1,000,000  for  books  embraced  within 
this  proposal.  Now,  can  we,  have  we  the  solidarity  of  action, 
is  it  possible  to  have  an  organization  which  is  capable  of  mobiliz- 
ing the  resources,  conserving  the  resources,  and  building  up 
a  great 'jurisprudence  fund  which  will  enable  the  Bar  Asso- 
ciation to  support  all  of  these  activities?  The  American  Bar 
Association  is  so  poor  that  it  cannot  and  it  does  not  give  its 
committees  sufficient  funds,  each  one  of  them,  to  hold  a  real 
committee  meeting.  And  if  the  Bar  Association  will  approve 
what  has  been  approved  up  to  within  the  last  few  weeks — well, 
I  don't  ask  the  American  Bar  Association  to  approve,  against 
the  will  of  the  Executive  Committee, — the  detailed  plan  of 
the  organization  in  which  we  shall  work,  and  as  for  the  plans 
of  classification,  it  is  specifically  provided  in  the  letter  of  Mr. 
Kemp  that  that  work  should  be  the  work  of  the  coming  year, 
the  work  of  revising  the  classification,  before,  of  course,  a 
single  page  of  the  book  would  be  set  forth,  would  be  adopted. 
The  first  conmiittee  reported  that  classification  was  the  beginning 
and  the  end  of  the  science,  that  classification  of  the  law  was 
absolutely  necessary  to  its  further  improvement. 
Now,  gentlemen,  I  will  pass  to  the  resolution. 

A  Member: 

May  I  ask  the  gentleman  a  question  ?  What  is  the  American 
Academy  of  Jurisprudence?    Who  compose  it? 

Mr.  Andrews: 

The  American  Academy  of  Jurisprudence  was  an  organization 
of  distinguished  men  organized  in  1914,  just  before  the  war. 
The  President  of  the  Association  was  Mr.  William  Howard  Taf t, 


94  AMEBIOAK   BAB  ASSOCIATION. 

and  Mr.  Boot  and  Mr.  Parker  and  Mr.  Wickersham  and  Mr. 
Coudert^  and  so  on — ^there  were  a  large  number — fifty-five  mem- 
bers in  all.  They  appointed  a  governing  body^  consisting  of 
fifteen  .men^  Mr.  Root,  Mr.  Harriman,  Mr.  Williston^  Mr.  Pound, 
and  men  of  that  character.  The  war  came  on  that  summer.  It 
takes  a  litle  time  to  get  started  in  a  matter  of  that  kind,  a  matter 
of  such  weight,  involving  the  questions  that  it  did.  Of  course 
there  could  then  be  nothing  publicly  done  in  a  matter  of  that 
kind.  But  the  discussion  of  the  important  question  involved  was 
not  abated.  It  was  at  the  meeting  in  1916  that  Mr.  Hoot  gave  the 
impulse  to  this  affair  by  referring  to  this  very  corporation  and 
saying  that  a  body  of  very  earnest.and  very  able  men  were  engaged 
in  bringing  about  a  definite,  specific  organization. 

Mr.  Wickersham: 
Haven't  they  all  resigned  ? 

Mr.  Andrews: 

No,  they  have  not.    There  have  been  three  resignations. 

Mr.  Wickersham: 
Who  were  they? 

Mr.  Andrews : 

You  haven't  resigned.  You  can  resign  now.  They  say  the 
good  Indians  are  the  dead  Indians,  but  the  good  lawyers  are 
the  live  ones.    We  are  fighting  to  a  finish. 

W.  F.  Mason,  of  South  Dakota: 

May  I  ask  this  question:  How  long  do  you  estimate  it  will 
take  to  complete  this  work? 

Mr.  Andrews: 

About  seven  years.    We  have  an  opinion  of  an  expert  on  that. 

Mr.  Mason: 

What  would  be  the  cost  to  the  practitioner? 

Mr.  Andrews: 

The  cost  to  the  practitioner,  as  now  arranged,  would  be  $800 
for  the  library — there  is  no  compulsion  whatever  in  the  purchase 
of  it,  of  course. 


REPORTS  OF   C0MMITTEB8.  95 

Mr.  Mason:  ^ 

I  would  like  to  ask  this  question.  Is  this  a  scheme  to  get  the 
book  endorsed,  a  publication  not  in  being? 

Mr.  Andrews : 
Yes. 

Mr.  Mason: 

It  would  have  no  authority  in  any  state  if  adopted  by  this 
Association. 

Mr.  Andrews: 
Oh^  no^  not  at  all. 

Mr.  Mason : 

It  would  not  be  binding  on  anybody  at  all  ? 

Mr.  Andrews: 
No,  sir. 

Mr.  Mason: 

It  would  be  a  commentary  on  the  statute  law.  In  other  words, 
it  means  another  scheme  to  have  the  lawyers  of  this  country 
buy  another  set  of  books. 

Mr.  Andrews: 

If  you  want  to  call  it  a  scheme,  well  and  good.  We  call  the 
matter  a  plan  to  make  a  specific  restatement  of  our  law,  complete 
and  definite,  and  it  has  had  the  endorsement  of  the  greatest  of 
the  jurists,  without  any  doubt,  up  to  within  a  very  few  weeks. 

The  President : 

The  question  now  occurs  upon  the  substitute  offered  by  Mr. 
Andrews,  which  is  that  this  matter  proceed  under  the  joint  con- 
trol of  the  Executive  Committee  of  the  American  Bar  Associa- 
tion and  the  Academy  Publishing  Corporation.  All  in  favor 
of  the  substitute  will  say  "  Aye.'*  Those  opposed,  "  No.*'  The 
motion  is  lost. 

The  question  now  recurs  upon  the  motion  made  on  behalf  of 
the  Executive  Committee  of  the  Association  by  the  Secretary,  Mr. 
Kemp,  which  I  will  again  read  to  you,  that  you  may  have  its 

4 


96  AMERICAN  BAB  ASSOCIATION. 

terms  precisely  before  you:     (The  President  then  re-tead  the 
proposed  resolution.) 

All  those  in  favor  of  the  adoption  of  the  resolution  will  say 
"  Aje"  Opposed,  "  No/^  The  ayes  have  it,  and  the  resolution 
proposed  by  the  Executive  Committee  is  adopted. 

Mr.  Andrews : 

I  move,  Mr.  President,  that  the  Committee  on  Classification 
and  Restatement  of  the  Law  be  continued. 

The  motion  was  seconded  and  carried. 
{See  Report,  page  391.) 

Committee  on  Legal  Aid  Work : 

Reginald  Heber  Smith,  of  Massachusetts: 

The  Committee  on  Legal  Aid  work  asks  you  to  adopt  its 
report,  in  which  there  is  contained  the  following  recommenda- 
tion that  the  Association  hereby  requests  the  oiBcers  of  the 
Section  of  Conference  of  Bar  Association  Delegates  to  bring 
the  subject  of  legal  aid  work  before  the  members  of  the  Section 
as  soon  as  may  be,  to  the  end  that  every  state  and  local  bar 
association  may  be  encouraged  to  appoint  a  standing  committee 
on  legal  aid  work. 

The  report  is  before  you,  and  I  think  that  a  very  short  state- 
ment will  satisfy  you  as  to  the  reasons  of  this  recommendation. 
In  England,  in  Scotland,  and  I  have  recently  learned  from  our 
distinguished  visitor  from  the  French  Bar,  in  France  also,  legal 
aid  work  is  carried  on  by  the  Bar  itself.  In  this  country,  we 
have  built  up  special  org:anizations  for  the  purpose,  called  legal 
aid  organizations.  But  that  does  not  lessen  the  individual 
lawyer's  duty  towards  the  matter,  nor  does  it  lessen  the  concern 
of  the  organized  Bar  in  the  matter.  The  only  way  the  organized 
Bar  can  act  is  through  a  committee.  The  American  Bar  Asso- 
ciation already  has  its  committee.  What  we  want  now  is  that  the 
state  and  local  bar  associations  should  emulate  our  example. 
In  New  York,  San  Francisco,  and  other  points,  the  Bar  Associa- 
tion has  already  done  so.  What  we  are  after,  ladies  and 
gentlemen,  is  that  there  should  be  an  effort  throughout  this 
country,  through  special  committees  of  all  bar  associations  on 


REPORTB  OF  OOMMITTEES.  97 

legal  aid  work,  to  promote  and  perfect  this  work,  so  that  nowhere 
in  the  United  States  will  it  be  possible  for  any  man,  no  matter 
how  humble^  to  be  denied  his  day  in  court,  because  of  his  inabil- 
ity to  pay  fees  and  costs. 

Mr.  Chairman,  on  behalf  of  the  committee,  I  move  the  adop- 
tion of  the  resolution. 

The  motion  was  seconded  and  carried. 
{See  Report,  page  Jlfi2,) 

Conmiittee  on  Aeronautios : 

William  P.  MacCracken,  of  Illinois : 

The  Committee  on  the  Law  of  Aeronautics  has  three  recom- 
mendations in  its  report.  The  first  one  is  that  a  committee 
be  appointed  to  carry  on  the  work  of  the  committee.  The  second 
one  is  that  the  discussion  of  a  Constitutional  amendment  to  vest 
exclusive  jurisdiction  over  aeronautics  in  the  federal  govern- 
ment be  discontinued  until  such  time  as  the  state  and  federal 
legislative  bodies  have  adopted  laws  and  those  have  been  con- 
strued by  the  Supreme  Court  out  of  which  they  will  eventually 
come.  It  seems  that  one  of  the  greatest  bugaboos  in  getting 
legislation  passed,  either  through  the  state  legislature  or  through 
the  national  legislature,  is  that  somebody  will  claim  it  is  uncon- 
stitutional. And  we  felt  the  need  was  for  enacting  favorable 
legislation,  that  aeronautics  might  be  developed. 

The  third  recommendation  I  am  going  to  take  the  liberty  of 
reading.  It  is  this :  ^'  That  the  members  of  the  American  Bar 
Association  be  urged  to  cooperate  with  the  national  authorities 
and  with  the  local  authorities  in  their  respective  states,  to  the 
end  that  governmental  action  may  result  which  will  tend  to  the 
development  of  aeronautics  in  the  United  States,  thereby  con- 
tributing to  our  national  prosperity  and  strengthening  our 
national  defenae.^^ 

In  explanation  of  that  recommendation,  I  want  to  call  your 
attention  to  the  Uniform  State  Law  of  Aeronautics,  which  was 
adopted  by  the  Commissioners  of  Uniform  Laws,  on  Monday  of 
this  week.  If  there  is  any  legislation  proposed  in  your  respective 
states,  we  would  urge  upon  you  to  see  that  it  conforms  in  toio  to 


98  AMBRIGAN   BAR  ASSOCIATION. 

this  particular  act.  The  bill  has  been  gone  over  carefully^  it  was 
the  subject  of  the  conference  of  two  committees  in  Washington 
last  February^  and  we  feel  unqualifiedly  that  it  is  the  best  thing  to 
introduce  and  pass  in  the  respective  state  legislatures. 

With  reference  to  the  federal  constitution^  let  me  state  that 
the  Wadsworth-Hicks  bill^  as  it  is  called,  is  still  pending  before 
the  Interstate  and  Foreign  Commerce  Committee  of  the  House, 
that  since  this  report  was  prepared,  the  Chairman  of  the  com- 
mittee and  Mr.  Davis,  another  member,  had  a  conference  in 
Washington  with  Judge  Lamb,  who  has  since  resigned  as  solicitor 
for  the  Department  of  Commerce,  who  had  been  working  on  that 
particular  bill,  and  also  with  Mr.  Winslow,  the  Chairman  of  the 
committee.  And  we  are  in  hopes  that  before  this  Congress  ad- 
journs, a  satisfactory  bill  will  be  introduced  and  passed.  If  not, 
we  suggest  that  there  be  presented  by  the  succeeding  committee 
a  bill  which  they  believe  will  be  satisfactory.  In  Washington  it 
developed  from  the  point  of  view  of  the  aircraft  industry  that 
they  were  so  desirous  of  legislation  by  the  federal  government, 
that  they  wanted  the  best  legislation  obtainable  and  not  any 
particular  legislation.  Therefore  the  committee  determined  to 
cooperate  with  the  authorities  in  Congress  rather  than  to  attempt 
to  draft  legislation  of  our  own.  But  if  that  does  not  result  in 
having  the  coming  Congress  pass  such  a  bill,  it  seems  to  me  that 
the  policy  should  be  to  press  state  legislation  and,  if  possible,  get 
it  through.   I  move,  Mr.  President,  the  adoption  of  the  report. 

The  motion  was  seconded  and  carried. 
{See  Report,  page  4IS.) 

Committee  on  Intemal  Bevenue  Law  and  Its  Means  of  Col- 
lection : 

Charles  Henry  Butler,  of  Maine : 

This  committee  was  a  special  committee,  and  the  President 
did  me  the  honor  of  making  me  the  chairman  of  it.  Our  report 
is  a  very  brief  one.  We  were  able  to  have  only  one  or  two  meetings 
of  the  committee  in  Washington,  but  we  took  up  with  the  Secre- 
tary of  the  Treasury  and  the  Commissioner  of  Intemal  fievenue 
and  the  higher  officers  in  charge  some  questions  of  modification 


RKP0RT8  OF  COMMITTEBS.  99 

of  the  practice  and  procedure  in  this  connection.  The  committee 
did  not  presume  to  take  up  legislative  matters^  feeling  that  any 
matter  of  that  kind  should  be  at  the  special  instruction  of  the 
Association.  What  we  did  was  to  endeavor  to  obtain  a  modifica- 
tion of  some  of  the  rules  and  regulations  of  the  Treasury  Depart- 
ment^ the  Internal  Revenue  Bureau^  in  regard  to  the  status  of 
attorneys.  And  in  our  letter  to  the  Secretary  of  the  Treasury 
and  the  Commissioner  of  Internal  Revenue^  which  is  included  in 
the  report,  we  have  made  .various  recommendations  which  I  will 
not  read,  but  I  will  just  refer  to  them. 

One  of  them  was  that  attorneys  practicing  before  the  Depart- 
ment should  not  only  be  subject  to  the  pains  and  penalties  which 
are  in  the  regulations,  but  they  should  also  have  the  privileges 
of  attorneys,  and  that  the  rule  that  when  an  attorney  appeared 
properly  qualified  to  represent  a  taxpayer,  thereafter  the  attorney 
should  be  the  sole  channel  of  communication  with  the  client, 
and  the  attorney  should  not  be  embarrassed  by  having  notices 
and  decisions  sent  direct  to  his  client  without  in  any  way  noti- 
fying the  attorney  who  had  appeared  before  them  and  who  was 
responsible  for  the  conduct  of  the  case — that  that  modification 
of  the  rule  should  be  made.  We  obtained  from  the  Commis- 
sioner— and  I  will  say  that  we  were  very  cordially  and  courteously 
received  by  the  higher  oflBcials  of  the  bureau — ^proper  considera- 
tion; and  they  have  promised  that  the  omissions  on  the  part 
of  the  staff  in  that  respect  will  be  remedied  and  prevented  in 
the  future,  and  that  furthermore,  when  an  attorney  once  files 
a  power  of  attorney  in  connection  with  a  matter  before  the 
Department,  he  should  be  recognized  to  the  conclusion  of  the  case. 

Another  matter  that  we  urged  was  that  opinions  by  the  bureau 
in  regard  to  matters  determined  there  should  be  given  wider 
publicity.  We  have  been  very  greatly  impressed,  and  all  those 
here  who  practice  before  the  Treasury  Department  will  appreciate 
this,  by  the  fact  that  we  frequently  have  to  argue  a  case  there 
without  knowing  what  the  law  is,  because  the  opinions  have  been 
marked  *'  Confidential.'*  One  matter  was  whether  the  question  of 
depreciation  was  covered  by  a  bond.  It  was  being  argued  before 
the  Court  of  Appeals,  and  reference  was  made  to  a  certain 
opinion  as  authority.    Counsel  for  the  Government  said,  "  Cer- 


100  AMERICAir  BAB  ASSOCIATION. 

tainly^  that  opinion  does  so  say,  but  we  are  bound  by  confidential 
opinion  No.  27.'*  The  question  was  then  asked  what  confi- 
dential opinion  No.  27  was,  and  the  reply  came,  "We  can't 
tell  you — ^it  is  confidential.''  And  the  question  was  asked  if 
the  case  was  to  be  argued  without  knowing  what  the  rules 
were,  and  the  reply  came,  "  Certainly.  That  is  a  confidential 
opinion."  Finally  the  Chief  Justice,  if  he  might  be  so  called, 
the  Chairman  of  Appeals  and  Eeviews,  said  that  he  would  have 
a  private  conference  with  a  representative  of  the  unit  as  to  what 
he  felt  confidential  opinion  27  amounted  to  in  this  case.  They 
went  out  of  the  room,  and  when  they  came  back,  they  said  that, 
after  all,  they  had  come  to  the  conclusion  that  confidential  opinion 
27  did  not  apply  in  this  case,  and  we  therefore  proceeded. 

That  appears  to  be  ridiculous,  gentlemen,  I  know.  But  the 
question  of  whether  confidential  opinion  No.  27  applied  involved 
more  than  a  half  million  dollars  of  taxes  that  the  taxpayers  would 
have  to  pay,  and  we  were  forced  to  argue  as  to  whether  or  not 
the  rules  of  depreciationj  did  apply,  without  knowing  what 
confidential  opinion  No.  27  was.  We  have  presented  that  to 
the  Secretary  of  the  Treasury,  and  to  the  Commissioner  of  In- 
ternal Revenue,  and  to  the  others,  and  we  now  hope  that,  sooner  or 
later,  those  opinions  of  the  Supreme  Court  of  the  Internal  Rev- 
enue Department  will  be  given  to  the  Bar. 

Another  point  that  we  took  up  was  the  question  of  some  small 
questions  of  practice,  and  as  to  those  they  have  said  they  would 
help  us,  and  that  when  our  papers  are  filed  they  would  be  accep- 
table. 

One  further  matter  which  is  a  matter  of  substantive  law 
rather  than  of  practice,  is  the  question  of  forcing  the  taxpayer  to 
pay  ii^  his  taxes,  file  a  protest,  and  then  bring  suit  to  recover 
when  in  many  cases  that  question  would  be  brought  up  by  the 
Government  bringing  suit  or  raising  the  question  in  such  a  way 
it  could  be  decided  before  the  department  has  been  committed 
on  the  question,  and  has  to  go  on  mulcting  the  taxpayers  until  we 
are  finally  relegated  to  the  courts,  where  the  argument  is  made 
that  the  decision  being  made  by  an  administrative  department 
which  has  administration  of  the  statute,  has  all  the  presumption 
of  correctness.    And  we  go  before  the  courts  with  the  presumption 


BLBOnON  OF.OFFXOEBS.  '    101 

against  us^  because  the  counsel  for  the  Qov/^nment  has  decided 
the  case  in  the  Government's  favor. 

Those  are  some  of  the  matters  which  we  have  tciken  up,  and 
which  we  are  urging  upon  the  officials  in  the  d6p^t^H^^nt.  In 
some  respects  we  hope  that  our  action  may  be  successful,  &t  least, 
in  the  direction  of  modifying  the  present  conditions.  Our  only 
recommendation  is  that  the  committee  be  continued  and  puri3ue 
the  work  which  it  is  now  doing.  We  ask  that  it  be  continued  for 
the  reason  that  the  work  is  so  far  only  partially  concluded. 

I  move  the  adoption  of  the  report. 

The  motion  was  seconded  and  carried. 
{See  Report,  page  4SS.) 

The  President: 

Next  in  order  is  the  nomination  and  election  of  officers.  Mr. 
Hart,  the  Chainnan  of  the  General  Council  will  report  the  nomi- 
nations made  by  the  General  Council. 

W.  0.  Hart,  of  Louisiana: 

The  report  of  thp  General  Council  is  as  follows : 

August  11,  1922. 
To  the  Members  of  the  American  Bar  Association  in  Annual  Meeting 
Assenibled: 

In  accordance  with  vote  cast  at  the  meeting  of  the  General  Council 
held  this  day,  the  following  are  nominated  for  election  as  officers  of  the 
Association  for  the  ensuing  year: 

For  President:  John  W.  Davis,  of  West  Virginia. 

For  Treasurer:   Frederick  E.  Wadhams,  of  New  York. 

For  Secretary:  W.  Thomas  Kemp,  of  Maryland. 

For  members  of  the  Executive  Committee:  Hugh  H.  Brown,  of 
Nevada;  John  B.  Corliss,  of  Michigan;  John  T.  Richards,  of  Illinois; 
Thomas  W.  Blackburn,  of  Nebraska;  Wm.  Brosmith,  of  Connecticut: 
S.  E.  Ellsworth,  of  North  Dakota;  Thomas  W.  Shelton,  of  Virginia  and 
A.  T.  ^tovall,  of  Mississippi. 

Mr.  President,  on  behalf  of  the  Council,  I  move  the  election 

of  the  officers  named  in  the  report  of  the  Coimcil,  and  that  the 

Secretary  cast  the  ballot  of  the  Association  for  them  as  named. 

The  motion  was  seconded  and  carried  and  the  officers  named 
were  declared  unanimously  elected. 

The  President : 

I  will  now  recognize  former  President  Francis  Rawle,  of  Phila- 
delphia, Pennsylvania. 


102  AMERICJ^N   BAB  ASSOCIATION. 

Francis  Bawle^  ot J^CHnsylvania : 

Mr.  Presidenir:';.r*'h&ve  the  honor  to  move  the  adoption  of  this 
resolution:.  :  '•. 

Resolv^'dp* That  the  American  Bar  AcBOciation  in  general  meeting 
aasemblea,  jtereby  express  to  the  California  Bar,  to  his  Excelleiicy  the 
GpvemoT  of  California,  and  to  the  Ladies  Committee,  their  great  ap- 
.|iracia{ion  of  the  generous  hospitality  extended  to  the  Association  and 
*  4tt»  members  which  has  made  this,  the  largest  meeting  of  the  Associa- 
tion ever  held  during  the  forty-four  years  of  its  existence,  the  most 
enjoyable  and  inspiring  event  in  its  history. 

The  beauty  of  the  city  of  San  Francisco  and  its  environs,  its  stimu- 
lating and  inspiring  cUmate  and  the  generous  courtesy  of  the  California 
men  and  women,  all  have  combined  to  make  our  sojourn  in  San 
Francisco  a  period  of  pure  enjo3rment. 

The  members  of  this  Association  will  carry  away  with  them  unfading 
memories  of  friendship,  kindliness,  and  naturkl  beauty. 

The  President: 

A  resolution  of  that  character  needs  no  second.  All  in  favor 
of  its  adoption  will  stand,  and  while  standing  will  vote  "  Aye." 
It  is  unanimously  carried. 

Nathan  Newby,  of  California  and  William  V.  Rooker,  of  Indi- 
ana, offered  resolutions  which  were  referred  without  reading  to 
the  Committee  on  Law  Enforcement  and  the  Executive  Com- 
mittee, respectively. 

Adjourned  sine  die, 

W.  Thomas  Kemp,  Secretary. 


SECRETARY'S  REPORT 

San  Prancisoo,  Cal.,  August  9,  1922. 
To  the  American  Bar  Association: 

The  report  of  the  proceedings  of  the  last  annual  meeting  of 
the  Association  has  been  printed  and  distributed  to  all  members^ 
to  all  state  bar  associations  and  to  legal  journals  and  libraries^ 
both  in  the  United  States  and  abroad. 

There  were  15^163  active  and  18  honorary  members  at  the  date 
of  the  publication  of  the  1921  report.  There  have  since  been 
about  750  deaths  and  resignations,  and  the  proposal  of  3003  new 
active  members,  all  of  whom  have  been  elected  by  the  Executive 
Committee  making  the  present  membership  about  17,000.  The 
Executive  Committee,  also  elected  Sir  John  A.  Simon  of  London, 
England,  and  Dr.  R.  Masujima,  of  Tokyo,  Japan,  to  honorary 
membership. 

The  membership  includes  representatives  of  all  the  states,  of 
the  District  of  Columbia,  and  of  the  insular  possessions  of 
Hawaii,  Porto  Rico  and  the  Philippines. 

There  are  now  in  existence  47  state  bar  associations,  and  also 
the  Bar  Association  of  the  District  of  Colunibia,  and  the  Bar 
Association  of  Hawaii.  In  addition  there  are  more  than  900  local 
bar  associations  of  which  we  have  record.  • 

The  Secretary  has  endeavored  to  keep  in  close  touch  with  the 
state  organizations  during  the  year.  In  lieu  of  invitations  as 
formerly  issued  to  state  bar  associations  for  appointment  of  three 
delegates  to  the  annual  meeting,  invitations  are  now  issued  by  the 
Conference  of  Bar  Association  Delegates  to  each  state  associa- 
tion to  send  three  delegates  and  to  each  local  association  to  send 
two  delegates  to  the  Conference,  such  delegates  also  to  represent 
their  respective  associations  at  the  meeting  of  the  Association. 

The  Secretary  attended  the  Special  Conference  on  Legal  Edu- 
cation arranged  by  a  joint  Committee  of  the  Section  of  Legal 
Education  and  the  Conference  of  Bar  Association  Delegates.  This 
Special  Conference  was  largely  attended  and  resulted  in  the  adop- 

(103) 


104  AMEBIGAK  BAB  ASSOOIATION. 

tion  of  the  resolutions  recommended  by  the  Association  at  its 
1921  meeting. 

The  Secretary  has  continued  to  supply,  upon  request,  copies 
of  the  Canons  of  Professional  Ethics;  about  1600  copies  have 
been  distributed  since  the  last  annual  meeting. 

Notices  were  duly  sent  by  the  Secretary  to  all  standing  and 
special  committees,  requesting  attention  to  matters  particularly 
referred  to  them. 

The  reports  of  certain  committees  for  the  year  1921-1922  were 
printed  in  a  special  pamphlet,  which  issued  to  members  more  than 
30  days  in  advance  of  the  meeting.    The  reports  are  as  follows : 

Standing  Committees, — Admiralty  and  Maritime  Law;  Com- 
merce, Trade  and  Commercial  Law;  Jurisprudence  and  Law 
Reform;  Legal  Aid;  Professional  Ethics  and  Grievances. 

Special  Committees, — Uniform  Judicial  Procedure;  Classifi- 
cation and  Eestatement  of  the  Law ;  Law  of  Aeronautics ;  Internal 
Revenue  Law  and  its  Means  of  Collection ;  Law  Enforcement. 

Sections,  Allied  Bodies,  etc. — Comparative  Law  Section,  and 
Section  of  Patent,  Trade-Mark  and  Copyright  Law. 

The  new  monthly  Joubnal  has  now  completed  its  second  year. 
The  Secretary  has  co-operated  closely  with  the  Board  of  Editors 
of  the  JouBNAL,  and  has  from  time  to  time  supplied  current  in- 
formation concerning  the  aifairs  of  the  Association.  The  Sec- 
retary's office  has  had  charge  of  the  details  of  the  printing  and 
issuance  of  the  Annual  Report,  the  pamphlet  containing  the  re- 
port of  the  proceedings  of  the  Special  Conference  on  Legal  Edu- 
cation above  mentioned,  and  the  special  pamphlet  containing 
reports  of  standing  and  special  committees. 

In  response  to  a  growing  demand,  and  by  direction  of  the 
Executive  Committee,  the  Secretary  has  re-arranged  the  geo- 
graphical list  of  members  by  cities  and  counties,  instead  of  merely 
by  states  as  formerly,  and  has  inserted  opposite  the  name  of  each 
member  the  date  of  his  election.  The  new  list  appeared  in  the 
1920  volume  of  the  Association  reports,  and  has  been  revised  and 
re-published  in  the  1921  volume. 

The  Secretary  has  received  during  the  year  reports  of  the  vari- 
ous state  bar  associations,  and  a  number  of  other  books,  all  of 
which  have  been  acknowledged  through  the  Joubnal. 


SECRETABT^S   REPOBT.  105 

The  Secretar/8  office,  established  in  Rooms  A  and  B  of  the 
Palace  Hotel,  will  use  the  system  of  registration  cards  as  in  re- 
cent years.  These  cards  may  be  obtained  at  the  office  or  in  this 
meeting  room.  Cards  should  be  signed  legibly,  and,  after  all 
blanks  are  filled,  should  be  returned  promptly. 

Members  and  delegates  are  requested  to  register  as  soon  as 
convenient  after  arrival.  Daily  lijsts  of  those  in  attendance  will 
be  printed  for  distribution  at  the  meeting,  and  the  last  revision 
thereof  will  be  included  in  the  Report  of  the  Proceedings. 

A  separate  register  of  the  members  of  the  Judicial  Section  will 
be  kept  in  the  Secretar}''8  office.  Palace  Hotel,  and  members  of  that 
Section  are  requested  to  register  their  names  and  addresses  imme- 
diately upon  arrival. 

Copies  of  the  Constitution  and  By-Laws,  program  of  1922  meet- 
ing, lists  of  officers  and  committees,  copies  of  committee  reports. 
Canons  of  Ethics  and  other  literature  of  the  Association  can  be 
had  at  the  Secretaryfs  office  in  Rooms  A  and  B  of  the  Palace 
Hotel.  Upon  request  at  Secretary's  office,  stenographic  service 
will  be  supplied. 

Pigeonhole  furniture  has  been  provided  in  the  Secretary's 
office  for  mail  addressed  to  members  in  care  of  the  American  Bar 
Association;  members  will  please  inquire  periodically  for  mail, 
message  and  telegrams. 

Application  blanks  and  information  concerning  the  status  of 
applicants,  as  well  as  all  information  concerning  membership, 
may  be  obtained  at  the  Headquarters  of  the  Association. 

The  Secretary  endeavors  to  keep  the  street  address  of  each 
member,  and  prompt  notification  of  changes  is  requested. 
f  Respectfully  submitted, 

W.  Thomas  Kbmp,  Secretary. 


* 


TREASURER'S   REPORT 

YEAR  ENDING  JULY  26,  1922. 
Summary  of  Membership  Roll. 

Membership  August  16,  1921 14,111 

New  members  subject  to  1922  dues 1,706 

New  members  subject  to  1923  dues 1,783 

Reinstated  during  year 31 

3,520 

17,631 

Deaths   231 

Resignations    94 

Dropped    336 

661 

Membership  July  26,  1922 16,970 

Membesshif  Dues  to  be  Accounted  For: 

AugiLst  16,  1921 — Memhers: 

Paid  dues  for  1922  in  advance 1,640  @  $6  each  $9^840.00 

Paid  dues  for  .1923  in  advance 1  6.00 

Owing  dues  for  1922 12,471  74326.00 

Owing  dues  for  1919 5  30.00 

Owing  dues  for  1920 275  1,650.00 

Owing  dues  for  1921 1,053  6,318.00 

New  members  added  during  year  1921-1922 

subject  to  1922  dues,  Listo  154-159,  incl. .  1,706  10,236.00 
New  members  added  subject  to  1923  dues, 

Lists  160-173,  incl 1,783  10,698.00 

Reinstated  owing  1915  dues 1  6.00 

Reinstated  owing  1920  dues 9  54.00 

Reinstated  owing  1921  dues 16  96.00 

Reinstated  owing  1922  dues 25  150.00 

Reinstated  owing  1923  dues 2         ___  12.00 

18.987  $113,922.00 
Members  (distinguished  from  new  members 
added)  who  paid  1923  dues  this  year  in 

advance    35 

35'        210.00 

19,022  $114,132.00 
Accounted  For: 

Paid  1922  dues  in  advance 1,640  $9,840.00 

Paid  1923  dues  in  advance 1  6.00 

$9,846.00 
Dues  paid  during  year  1921-1922 : 

Paid  1915  dues 1  $6.00 

Paid  1920  dues 92  552.00 

Paid  1921  dues 561  3,366.00 

Paid  1922  dues 12,435  74,610.00 

Paid  1923  dues 1,216  7,296.00 

Total  dues  paid  year  ending  85330.00 

July  26,  1922 14^05 

(106) 


treasureb's  report. 


107 


Deaths  owing  1920  dues 3 

Deaths  owing  1921  dues 10 

Deaths  owing  1022  dues 211 

Resignations  owing  1921  dues..  4 

Resignations  owing  1922  dues..  30 

Dropped  owing  1919  dues 4 

Dropped  owing  1920  dues 180 

Dropped  owing  1921  dues 303 

Dropped  owing  1922  dues 335 

Dropped  owing  1923  dues 1 

Exempted  for  1919  dues 1 

Exempted  for  1920  dues 9 

Exempted  for  1921  dues 8 

Exempted  for  1922  dues 4 

Permanent  exemptions   (1922)..  2 

Members  owing  1921  dues 177 

Members  owing  1922  dues 1,179 

Members  (new)  owing  1923  dues.  002 
Member   reinstated   owing   1923 

dues,  but  not  yet  paid  for. . .    1 

19^^ 
Dr. 


$18.00 
90.00 

i;2eo.oo 

24.00 

216.00 

24.00 

1,080.00 

1318.00 

2,010.00 

0.00 

0.00 

54.00 

48.00 

24.00 

12.00 

1,0@.00 

7,074XK) 

3,612j00 


OjOO    $114,132j00 
$114,132.00 


To  cash  on  hand  at  date  of  last  report 

To  cash  received  from  members  for  subscriptions  to  annual 

dinner  at  Cincinnati 

To  cash  received  from  subscriptions  to  American  Bab  Aiaso- 

ciATioN  Journal  

To  cash  received  from  sale  of  Amkbican  Bab  Association 

Journal   

To  cash  received  from  advertisements  in  the  American  Bab 

Association  Journal 

To  cash  received  from  sale  of  copies  of  annual  reports  of  the 

Association  

To  cash  received  from  sale  of  membership  lists 

To  cash  received  interest  on  funds  deposited  in  savings  banks. 
To  cash  received  interest  on  funds  invested  in  railroad  bonds. . 
To  cash  received  interest  on  funds  invested  in  Liberty  Loan 

bonds 

To  amount  refunded  by  (Dontinental  Memorial  Hall  rent  for 

Conference  at  Washington  of  Bar  Association  Delegates 

on  Legal  Education 

To  amoimt  refunded  by  former  Membership  Committee 

To  amount  refunded  by  Secretary  for  postage  on  1921  annual 

meeting  Committee  Reports 

To  cash  received  for  sale  of  copies  of  proceedings  of  (Don- 

ference  of  Bar  Association  Delegate  on  Legal  Education. . 

To  cash  borrowed  money 

To  cash  received  dues  of  members  $6  each : 

For  1919  1  SOjOO 

1920  92        562i» 


$12,766.48 

4;i56.00 

581.76 

17752 

5,260.09 

111.50 
26.00 

2sn 

712.50 
637^ 


115i»5 
4.65 

54.12 

100.00 
10,000.00 


For 

For  1921  561  3,366X)0 

For  1922  12,435  74^10i)0 

For  1923  1,216  7,296.00 

14^  

Total  receipts $120336j94 


853ao.oo 


108  AMEBICAN   BAB  ASSOCIATION. 


-  Summary  of  Disbursements,  August  16i  1921  to  July  26»  1922, 

Inclusive. 

Expenses  of  annual  meeting  1921 $1,653.40 

Expenses  of  annual  meeting  1922 672.76 

Expenses  of  annual  dinner  1921 4322.00 

Stenographer  reporting  annual  meeting  1921 1,658.18 

Hotel  expenses  and  entertainment  of  guests  at  annual 

meeting  1921  552.62 

$8,768.96 

Annual  report: 

Printing    $15396.45 

Shipping    2^9.78 

17,96623 

American  Bar  Association  Journal: 

Printing  monthly  issues  of  Journal  (11  months)  .$18,61331 
Shipping    expenses,    sorting    labels    by    states, 

pasting  wrappers,  labels,  etc ^. . .     1336.01 

Miscellaneous  printing   for  wrappers,  shipping 

labels,  etc 14733 

Printing  index  Vol.  7 19534 

Salary    4,900.00 

Clerk  hire   1,686.00 

Rent    870.00 

Traveling  expenses   90.16 

Payment  of  assistants  in  editorial  work 83.77 

Extra  postage   6.42 

For  office  expense  account  during  year  * 2,272.78 

$30,199.12 

Expenses  of  Executive  Committee 2,606.54 

Amount  of  appropriations  expended  by  committees.     (See 

Schedule  "  A  '^  hereto  attached) 20,984.90 

Addressograph  supplies  and  repairs 148.06 

Furniture  and  equipment 245.70 

Books  and  periodicals 20.60 

Miscellaneous  printing   63S7.40 

Process  letters  and  typewriting  286.68 

Stamps,  stamped  envelopes,  postal  cards  and  parcel  post 2,736.43 

Stationery  and  supplies 172.41 

Sundry  expenses  17633 

Telegraph  and  cable , 254.71 

Telephone  tolls   19831 

Express  and  freight 132.62 

Rent  of  rooms  in  Maryland  Trust  Building,  Baltimore,  Md.. . .         480.00 

Rent  of  storage  room  in  Baltimore,  Md : 33.(X) 

Rent  of  rooms  in  Spencer  Trask  Building,  Albany,  N.  Y 678.74 

President's  expenses  1921 7.44 

Secretary's  traveling  expenses  for  self  and  assistants 33135 

Treasurer's  traveling  expenses 926.45 

Secretary's  office  salary  account 5,000.00 

Treasurer's  office  salary  account 5,000.00 

Treasurer's  salary  5,000.00 

Borrowed  money  repaijd 10,000.00 

Interest  on  borrowed  money 9034 

Total  disbursements    $11731331 

Cash  on  Hand. 

Total  receipts $120,636.94 

Total  disbursements 117313.81 

Cash  on  hand  July  26,  1922 $2323.13 

*  This  item  includes  $1368.90,  postage  on  eleven  iasues  of  the  Joxtrnal, 
September,  1921,  to  July^  1922,  inclusive. 


tbsasubeb's  bepobt.  109 

Bank  Dbposits  and  Cash  on  Hand. 

Funds  deposited  in  savings  banks 163.17 

Funds   deposited    in    Albany   Trust    Co.,    checking 

account    1 2,691^ 

Cash  on  hand  in  Treasurer's  office 68.67 


S2,823.13 


FvNps  Invested. 

10  No.  Pac.  R.  R.  Priw  Lien  4's $9,637  JW 

5  Pa.  R.  R.  Consolidated  4i's 5,356^ 

5  111.  Central  R.  R.  4'8  bought  at  91i 4^75.00 

10  $1,000   U.   8.   Government   bonds    (4i%    Second 

Liberty  Loan)    10,000.00 

5  tlfiOO  U.  8.  Government  bonds  (4i%  Third  Liberty 

Loan    5,000.00 

$34.568.75 

Total  cash  on  hand  and  funds  invested $37^1.88 

8cHBDnij»  "A." 

AMOUNTS  AFPROPBIATIID  TO  AND  EXPENDED  BT  OOMMITrBBS. 

Appropriated 

/ " * 

lMD-1981       102M928  Oommittce  on  Expended 

250X)0      250.00  Comparative  Law  Section 00.00 

500.00 '     500.00  Section  of  Criminal  Law $345.00 

IfiOOJOO    4.250.00  Section  Legal  Education 3,632.21 

250.00      400XK>  Judicial   Section 224.47 

150.00       150.00  Public  Utilities  Section 40.83 

1,250.00    3,000.00  Section  Conference  Bar  Association  Dele- 
gates     3,425.16 

200.00      250.00  Patent  Law  Section 315.71 

OOiX)      200.00  Admiralty  and  Maritime  Law 00.00 

00.00      250.00  Legal  Aid   36^ 

600.00    2,000.00  Commerce,  Trade  and  Commercial  Law..  1,685,67 

300i)0      500.00  Professional  Ethics  and  Grievances 339.42 

OOXX)      750.00  Internal    Revenue    and    its    means    for 

Collection   235.12 

400.00      400.00  Insurance  Law  00.00 

100.00       100.00  International  Law 00.00 

250.00       250X)0  Uniform  Judicial  Procedure  107.40 

1,400.00    l/)00.00  Jurisprudence  and  Law  Reform 663.38 

00.00    1,000.00  Law  Enforcement   1,198.54 

00.00      500.00  Monument  to  Judge  Chase 240.00 

500.00        00.00  Legislative  Drafting  00.00 

3,000XK)        00.00  Membership: 

Lucien  Hurfi  Alexander,  Chairman 30.00 

00.00    3,000.00           Frederick  E.  Wadhams,  Chairman....  4^35.39 

00.00    1,000.00  Judicial  Ethics  OO.QQ 

250.00        00.00  Change  of  Date  of  Presidential  Inaugura- 
tion      00.00 

IjmXJO    1,600.00  PubUcity    U1L31 

450.00      250.00  Classification  and  Restatement  of  the  Law  150.00 

500.00      250.00  Noteworthy  changes  in  Statute  Law 00.00 

00.00    IpOOOXX)  Representatives  of  A.  B.  A.  to  Conference 

Bar  Delegates 635.62 

2,500.00    4,500.00  Commissioners  on  Uniform  State  Laws. . .  1,500.00 

350XK)      350jOO  Law  of  Aviation  12S3I 

Total   $20,984.90 

Fbedebiok  E.  Wadhams, 

Treasurer. 


REPOUT 

OF  THB 

EXECUTIVE  COMMITTEE 

San  Pbanoisoo,  Cal.,  August  9, 1922. 
To  the  American  Boar  AssodcUion: 

The  Executive  Committee  respectfully  reports  that  under 
Article  III,  Section  "d/*  of  the  Confititution  providing  for 
election  of  members  between  meetings  of  the  Association,  the 
committee  has  elected  3003  members  of  the  Association,  upon 
nomination  by  a  majority  of  the  Vice-President  and  Iiocal 
Coimcil  of  the  respective  states. 

The  Executive  Committee  has  also,  by  virtue  of  authority  con- 
ferred upon  it  by  Article  III  of  the  Constitution,  elected  to  hono- 
rary membership.  Sir  John  A.  Simon  of  London,  England,  and 
Dr.  Sokuichiro  Masujima,  of  Tokyo,  Japaa. 

The  Executive  Committee  met  at  Tampa,  Florida,  January  9, 
10  and  11,  1922.  Many  matters  of  detail  in  the  work  of  the 
Association  were  brought  before,  and  passed  upon  by  the  com- 
mittee, as  more  fully  appears  from  the  minutes  of  these  meetings. 

The  committee  has  kept  in  close  touch  with  the  Board  of 
Editors  of  the  American  Bak  Association  Journal,  now  com- 
pleting its  second  year  as  a  monthly  periodical.  In  September 
and  January,  the  committee  conferred  personally  with  the  Board 
of  Editors  of  the  Journal.  The  committee  at  the  beginning  of 
the  current  year,  upon  request  of  the  Chairman  of  the  Board  of 
Editors  of  the  Journal,  placed  at  the  disposal  of  the  board  an 
allowance  not  exceeding  $40,000,  for  the  year  ending  August, 
1922.  The  board  reports  regularly  to  the  committee  concerning 
receipts  and  disbursements.  The  expense  of  publishing  the 
Journal  for  the  year  has  amounted  to  $30,531.20,  whereof, 
$6,178.91  has  been  repaid  by  advertising  and  subscriptions  mak- 
ing the  net  expense  $24,352.29,  or  an  average  net  expense  of 
$2029.35  per  month. 

(110) 


RBPORT   OF  EXSCUTIYB  COMMITTEB.  Ill 

The  committee  appropriated  the  sum  of  $5000  to  Frederick  E. 
Wadhams  in  recognition  of  his  valued  and  continued  service  to 
the  American  Bar  Association  for  the  past  twenty  years. 

The  committee  passed  resolutions  favoring  certain  proposed 
legislation  pending  in  Congress  and  authorized  the  President 
to  take  appropriate  steps  in  support  thereof^  as  follows : 

1.  Senate  Bill  No.  2433,  providing  for  an  appointment  of 
18  additional  federal  judges. 

2.  Senate  Bill  No.  2870  providing  for  uniformity  of  procedure 
in  practice  in  federal  courts. 

The  committee  approved  the  list  of  General  Council,  for  the 
separate  jurisdiction  of  the  Philippine  Islands.  The  committee 
invited  the  members  of  the  American  Bar  Association  resident  in 
China  to  hold  a  meeting  and  elect  General  Council,  Vice-Presi- 
dent and  Local  Council  from  that  jurisdiction  under  the  name  of 
the  American  Bar  Assodation  in  China. 

The  committee  ha^  received  from  Dr.  R.  Masujima  of  Tokyo, 
Japan,  a  communication  addressed  to  the  American  Bar  Associa- 
tion inviting  this  Association  to  join  the  International  Bar 
Association  with  headquarters  at  Tokyo.  The  committee  has 
been  forced  to  decline  this  invitation,  because  under  the  Consti- 
tution of  this  Association,  its  activities  and  powers  are  limited  to 
the  United  States  of  America. 

Under  the  authority  of  the  committee,  the  President  has  ap- 
pointed the  following  special  committees : 

1.  Committee  on  Coordination  of  Work  of  Sections  and  Com- 
mittees, consisting  of  Messrs.  John  B.  Corliss,  Thomas  W.  Shelton, 
C.  A.  Severance  and  George  B.  Young.  The  report  of  this 
special  conunittee  is  herewith  attached  as  part  hereof. 

2.  Committee  on  Marking  the  Grave  of  Chief  Justice  Chase, 
composed  of  Messrs.  Selden  P.  Spencer,  Andrew  Squire  and  Guy 
W.  Mellon.  This  committee  has  selected  a  suitable  monument, 
cQntracted  for  its  erection  and  collected  the  sum  of  $4000  to 
defray  the  expense  thereof. 

3.  Committee  on  Uniformity  of  Size  of  Records  and  Briefs 
consisting  of  Messrs.  Thomas  W.  Shelton  and  Thomas  C. 
McGlellan. 


112  AMEBIOAN  BAB  ASSOOIATIOK. 

4.  Committee  on  Defining  Scope  and  Activities  of  Standing 
Committee  on  ProfesBional  Ethics  and  Grievances  consisting  of 
Messrs.  Thomas  C.  McClellan^  John  T.  Bichards  and  Thomas 
Francis  Howe. 

5.  Committee  on  Judicial  Ethics  consisting  of  Chief  Justice 
Taft^  Chief  Justice  Leslie  C.  Cornish  of  Maine,  Chief  Justice 
Robert  von  Moschzisker  of  Pennsylvania,  and  Messrs.  George 
Sutherland  and  Charles  A.  Boston.  This  committee  has  held 
meetings  and  the  matter  is  still  under  consideration. 

6.  Committee  on  Promotion  of  American  Ideals  composed  of 
Messrs.  Martin  J.  Wade,  Edgar  B.  Tolman,  Walter  George  Smith, 
R.  E.  L.  Saner  and  Andrew  A.  Bruce.  The  report  of  this  com- 
mittee will  be  submitted  at  a  later  session. 

7.  Committee  on  Index  to  Legal  Periodicals  composed  of 
Messrs.  George  B.  Young,  W.  0.  Hart  and  Frederick  E.  Wadhams. 

8.  Committee  on  Internal  Revenue  Law  and  Its  Means  of  Col- 
lection, consisting  of  Messrs.  Charles  Henry  Butler,  Murray  M. 
Shoemaker,  William  H.  FoUand,  George  M.  Morris,  Benjamin 
W.  Kernan.  The  report  of  this  committee  will  be  submitted  at 
a  later  session. 

9.  Committee  on  Removal  of  Government  Liens  on  Real  Estate 
consisting  of  Messrs.  John  T.  Richards,  Chester  I.  Long  and 
John  A.  Chambliss.  This  committee  still  has  the  matter  under 
consideration. 

The  Executive  Committee  invited  the  International  Bar  Asso- 
ciation and  the  Canadian  Bar  Association  to  send  one  or  more 
delegates  to  attend  the  annual  meeting  of  the  Association. 

The  President  appointed  the  following  delegates  on  behalf  of 
the  Association,  to  attend  the  meetings  indicated: 

Henry  W.  Anderson  and  Silas  H.  Strawn  to  attend  the  meeting 
of  the  American  Academy  of  Political  and  Social  Science  in 
Philadelphia  on  May  12  and  13,  1922. 

Henry  St.  George  Tucker  to  attend  the  William  and  Mary 
College  celebration. 

John  W.  Davis  to  attend  the  meeting  of  the  Canadian  Bar 
Association  in  Vancouver  August  16,  17  and  18,  1922. 

The  committee  further/  reports  that,  in  accordance  with  By- 
Laws  X  and  XII,  appropriations  were  made  for  the  use  of  the 


REPOBT  OF  EXSOUTIYB  COMMITTEE.  113 

respective  committees^  sections^  etc.^  not  exceeding  the  following 
amounts : 

SECTIONS. 

AmouDts 

L^al  Education  $4^50.00 

Conference  of  Bar  Association  Delegates 3,000.00 

Commissioners  on  Uniform  State  Laws 4,500.00 

Judicial  Section    400.00 

Patent,  Trade-Mark  and  Copyright  Law 250.00 

Comparative  Law  Bureau  250.00 

Pubhc  Utility  Law  150.00 

Criminal  Law 600.00 

COMMITTEES. 

Commerce,  Trade  and  Commercial  Law 2,000.00 

International  Law   100.00 

Insurance  Law 400.00 

Jurisprudence  and  Law  Reform 1,000.00 

Professional  Ethics  and  Grievances  500.00 

Admirality  and  Maritime  Law 200.00 

Publicity    1,500.00 

Noteworthv  Changes  in  Statute  Law 250.00 

Membership    3,000.00 

Uniform  Judicial  Procedure  250.00 

Classification  and  Restatement  of  the  Law 250.00 

Law  of  Aeronautics  350.00 

Legal  Aid 250.00 

Law  Enforcement  1,000.00 

Marking  Grave  of  Chief  Justice  Cha% 500.00 

Representatives  of  American  Bar  Association 1,000.00 

Internal  Revenue  and  its  Means  of  Collection. . . .  750.00 

Judicial  Ethics 1,000.00 

Total    $27,600jOO 

Bespectfully  submitted, 

CoRDBNio  A.  Severance, 
Fbederigk  E.  Wabhams, 
Hugh  H.  Brown, 
John  B.  Corliss, 
John  T.  Richards, 
Thomas  W.  Blackburn, 
William  Brosmith, 
^        S.  E.  Ellsworth, 

Thomas  W.  Shelton, 
"      W.  Thomas  Kemp. 


MEMBERS  AND  DELEGATES  REGISTERED 

AT  THE 

FORTY-FIFTH  ANNUAL  MEETING 


1922. 


CANADA. 

ADglln,  Justice,  Ottawa. 
Baxter,  John  B.  If.,  St.  John. 
Daviaon,    Geoxge    Hark,    Vancouver. 
Lockyer,  Arthur  Leonard,  Vancouver. 
Martin,  Hon.  J.  E.,  Montreal,  Quebec. 
Surveyer,   E.   Fabre,   Montreal. 
Taylor,   S.   S.,   Vancouver. 

FRANOE. 
Aubepin,  Henry,  Paria. 

JAPAN. 

Hanoaka,  Toshlo,  Tokya 
Masujima,  R.,  Tokyo. 

ALABAMA. 

Acker,  William  P.,  Anniston. 
Oabanisa,   E.   H.,    Birmingham. 
Cooper,    Lawrence,    Huntsville. 
Dixon,  J.  K.,  Talladega. 
Nelson,  Geo.  A.,  Decatur. 

ARIZONA. 

Olark,  E.  A.,  Phoenix. 
OoUina,  Huber  A.,  Yuma. 
Oraig,   J.   Early,   Phoenix. 
Curley,  Frank  E.,  Tucson. 
Davis,  Robert  M.,  Tucson. 
Favour,  A.  H.,  Prescott. 
OUroore,  W.  O.,  Dotiglas. 
Oung'l,  John  C,  Willoox. 
Hartman,  Francis  M.,  Tucson. 
Jayne,  A.  A.,  Oasa  Grande. 
Knapp,   0.   T.,    Bisbee. 
Lamson,  Richard,  Prescott. 
Lavin,  James  P.,  Phoenix. 
Marka,   Bamett  B.,  Phoenix. 
Mathews,  Olifton,  Globe. 
Norris,  Thomas  G.,  Prescott 
Pickett,    Harry  E.,   Douglas. 
Stahl,  Floyd  M.,  Phoenix. 
Sullivan,  John  L.,  Prescott. 
WilklDBon,  H.  B.,  Phoenix. 
Wilson,  a  B.,  Flagstaff. 
Winsett,  A.  L,  Tucson. 


ARKANSAS. 

Haunter,  J.  H.,  Little  Rock. 
Mann,  S.  H.,  Forrest  City. 
Pace,  Frank,  Little  Rock. 

CALIFORNIA. 

Abbott,   Wm.    M.,    San   Francisco. 
Ach,  Heniy;  San  Francisco. 
Ackerman,   Lloyd   S.,   San  Francisco. 
Adams,  Anette  Abbott,  San  Francisco. 
Adams,  Charles  Albert,  San  Francisco. 
Adams,   William  F.,  Los  Angeles. 
Agnew,  Albert  C,  San  Francisco. 
Allan,  R.  E.,  San  Francisco. 
Allan,  Thos.  A.,  San  Francisca 
Allard,   Joseph  A.   Jr.,   Pomona. 
Altman,  John  C,  San  Frandsoo. 
Ames,  Alden,  San  Frandsoo. 
Anderson,  Clarendon  W.,  Santa  Rosa. 
Anderson,  William  H.,  Loa  Angeles. 
Andrews,  A.  V.,  Los  Angeles. 
Andrews,  William  Samuel,  San  Francisco. 
Angellotti,  F.  M.,  San  Francisco. 
Appel,  Cyril,  San  Frandsco. 
Arendt,   Margaret,   San  Francisco. 
Armstrong,  £.  H.,  Grass  Valley. 
Armstrong,  R.  M.  J.,  San  Frandsco. 
Ashbum,  Allen  W.,  Los  Angeles. 
Ashley,  A.  H.,  Stockton. 
Atwood,  C.  G.,   San  Franciaca 
Austin,  Frank  B.,  San  Francisco. 
Aynesworth,   G.   L.,    Fresno. 
Bailey,  A.  G.,  Woodland. 
Barber,   L.   N.,   Fresna 
Barber,  Oscar  T.,  San  Francisco. 
Barcroft,  Joseph,  Madera. 
Bardin,  Judge  J.  A.,  Salinas. 
Barendt,  Arthur  H.,  San  Francisco. 
Barrett,  R.  M.,  Santa  Rosa. 
Barrowa,  R.  K.,  San  Francisco. 
Barrows,  W.  H.,  San  Francisco 
Baylees,  W.   S.,  San  Francisco. 
Beardsley,  Charles  A.,  Oakland. 
Beckett,  O.  Tucker,  San  Francisco. 
Becsey,  Roland,  San  Frandsco. 
Beebe,  George,  Los  Angeles. 
Beedy,  Louis   S.,   San    Francisco. 


(114) 


MEMBERS   AND  DELEGATES   BE0I8TEBED. 


115 


'    B«ll,  Golden  W.,  San  FranciRCO. 
Bennett,  Eugene  D.,*San  Francisco. 
BeiiB^rot,  P.  A.,  San  Francisco. 
Berry,  Fred.  L.,  San  Francisco. 
Bickder,  W.  S.,  Los  Angeles. 
Bien,  Joeeph  E.,  San  Francisco. 
Billings,  Addie  K.,  Oalistoga. 
Bingham,  Joseph  W.,  Stanford  University. 
Binnard,  Morris,  San  Diego. 
Bischoff,  Heniy  J.,  San  Diego. 
Black,  A.  P.,  San  Francisco. 
Blakem&n,  T.  Z.,  San  Francisco. 
Blanckenbuig,    G.    B.,    Berkeley. 
Bledsoe,   Benjamin  P.,  Los  Angeles. 
Bluzome,  Joseph  P.,  San  Francisco. 
Boland,  P.  Eldred,  San  Francisco. 
Bolton,  Arthur  W.,  San  Francisco. 
Booth,  Henley  O.,  Berkeley. 
Bordwell,  Walter,   Loa  Angeles. 
Borland,  Robert  H.,  San  Francisco. 
Bosley,  Wm.  B.,  San  Franciaco. 
Boyken,  A.  W.,  San  Francisco. 
Boynton,   Albert  E.,   San  Francisco. 
Boynton,  Chas.  0.,  San  Francisco. 
BradlQr,  Christopher  M.,   San  Francisco. 
Brand,   Clyde   H.,    Sacramento. 
Brandenatein,  H.  U.,  San  Francisco. 
Braun,  Walter  S.,  San  Francisco. 
Breckenridge,  James  J.,  San  Diego. 
Brennan,   Robert,   Lot  Angeles. 
Bridgford,  Eugene  A.,  San  Francisco. 
Britt,  E.  W.,  Los  Angeles. 
Brittain,  P.   S.,   San  Francisco. 
Brobeck,  W.  L,  San  Francisco. 
Bronson,  Roy  jL,  San  Francisca 
Brookman,  Douglas,  San  Francisco. 
Brouillet,   A.    W.,   San   Francisco. 
Brown,  William  B.,  Los  Angeles. 
Brown,  Joseph  A.,  San  Francisco. 
Brun,  S.  J.,  San  Francisco. 
Bryan,  Wm.  Jennings,  Jr.,  Los  Angeles. 
Buck,  George  P.,   Stockton. 
Buckley,  Christopher  A.,  San  Francisco. 
Bull,  Franklin  P.,  San  Francisco. 
Bullock.  Georgia  P.,  Los  Angeles. 
Burke,  Andrew  P.,  San  Francisco. 
Burnett,  W.   S.,  San  Francisco. 
Bush,  Gea   B.,  Sacramento. 
Butler,  J.  W.  S.,  Sacramento. 
Butler,  M.  B.,  Pasadena. 
Byington,   Lewia  P.,   San  Francisco. 
Cabaniss,  Judge  George  H.,  San  Franolsco. 
Gahill,  Lawrence  If.,  San  Mateo. 
Oalfee.  Tsar  N.,  Richmond. 
Campbell,  Donald  Torke,   San  Francisco. 
Canfield,  Robert  B.,   Santa  Barbara. 
Carline,  A.  M.  Jr.,  Santa  Rosa. 
Qarlaon,  Arthur  J.,  Modesto. 


Carr.  Francis,  Redding. 
Carr,  Sterling,  San  Francisco. 
Garter,  Royle  A.,  San  Francisco. 
Gary,  W.  P.,  San  Diego. 
Cashman,  W.  E.,  San  Francisco. 
Castberg,  Biame,  Los  Angele& 
Cathcart,  A.  M.,  Palo  Alto. 
Caulfleld,  C.  Harold,  San  Francisca 
Chamberlain,  R.  H.  Jr.,  Oakland. 
Chamberlin,  Heibert,  San  Francisco. 
Chambers,  William,  Loa  Angelea. 
Chandler,  A.  E.,  San  FYandaeo. 
Chandler,  Jeff.  P.,  Los  Angeles. 
Chapman,  Edgar  C,  San  Francisco. 
Chase,  Charles  W.,  Los  Angeles. 
Chenoweth,  Orr  M.,  Redding. 
Ghickering,  Allen  L.,  San  Francisco. 
Childs,  Enid,  San  Francisco. 
Church,  Lincoln  S.,  Oakland. 
Clark,  Herbert  W.,  San  Francisco. 
Clarke,  Robert  M.,  Loa  Angeles. 
Clayaon,  Walter  S.,  Corona. 
Clock,  Ralph  H.,  Long  Beach. 
Cluff,  Alfred,  T.,  San  Francisco. 
Coe,  Arthur  P.,  Los  Angelea. 
Coffey,  Edward  I.,  San  Francisca 
Coffey,  Jeremiah  Y.,  San  Francisco. 
Coghlan,  John  P.,  San  Francisca 
Cohen,  Louia,  Atascadero. 
Colby,  Wm.  E.,  San  Francisco. 
Cole,  Cornelius,  Los  Angeles. 
Cole,  Franklin  J.,  El  Centro. 
Coleberd,  J.  W.,  South  San  Francisco. 
Collins,  Victor  F«rd,  Los  Angles. 
Colston,  Jamea  E.,  San  Francisco. 
Connolly,  George  A.,  San  Francisco. 
Conrey,  N.  P.,  Los  Angeles. 
Cooley,  A.  E.,  San  Francisco. 
Corbet,  Burke,  San  Francisco. 
Cormac,  T.  E.   K.,  San  Francisco. 
Cornish,  Frank  V.,  Berkeley. 
Cosgrove,  T.  B.,  Los  Angeles. 
Countryman,  Robert  H.,  San  Francisco. 
Orabbe,   John   Hammond,   San   Francisco. 
Craig,  Hugh  H.,  Riverside. 
Crane,  A.  Bathurst,  San  Francisco. 
Creed,  Wigginton  E.,  San  Francisco. 
Orider,  Joe,  Jr.,  Los  Angeles'. 
Crocker,  Chas.   H.,   Sacramento. 
Crosby,  Peter  J.,  Hayward. 
Cross,  J.   M.,  Modesto. 
Cross,  R.  H.,  San  Francisco. 
Crothers,  Qeo.  E.,  San  Francisco. 
Crothers,  Thomas  G.,  San  Francisco. 
Crow,  S.  E.,  Santa  Barbara. 
Crump,   Guy  Richards,  Los   Angeles. 
Cullinan,  Eustace,  Ban  Francisco. 
Cnlver,  Richard  J.  0.,  Los  Angeles. 


116 


AMERICAN  BAR  ASSOCIATION. 


Cunha,  Edward  A.,  San  FrancMOO. 
Curran,  John  M.,  Santa  Barbara. 
Curtis,  J.   W.,  San  Bernardino. 
Cushln^,  Charles  S.,  San  Francisco. 
Cushing,  0.  K.,  San  Francisco. 
Outten,  Charles  P.,  San  Francisco. 
Cuttrell,  C.  J.,  Yreka. 
Dall,  Cornelius  O.,  San  Francisco. 
Daney,  Eugene,  San  Diego. 
Darlington,  Barton,  Los  Angeles. 
Davis,  W.  Jefferson,  San  Di^^. 
Davison,  C.  W.,  San  Jose. 
Deahl,  John  L.,  San  Francisco. 
Dearing,  Milton  M.,  Fresno, 
de  Bettencourt,  Jose  L.,  San  Francisco. 
Deering,  Frank  P.,  San  Francisco. 
Deering,  James  H.,  San  Francitoo. 
DeForest,  Joseph  O.,  San  Francisco. 
De  Oarmo,  G.  C,  Los  Angeles. 
Dehm,  W.  H.,  Los  Angeles. 
Dehy,  Wm.  D.,  Independence. 
De  Lap,  T.   H.,  Richmond. 
De  Ligne,  A.  A,  San  Francisca 
Denman,  William,  San  Francisco. 
Dennett,  L.  L.,  Modesto. 
Derby,  S.  Basket,  San  Franci«co. 
Demham,  Monte.  A.,  San  Francisco. 
De  Roy,  Irvin  E.,  San  Francisco. 
Dessouslavy,  A.  P.,  San  Francisco. 
Devlin,  Frank  A.,  San  Francisco. 
Devlin,  Wm.  H.,  Sacramento. 
Devoto,  Anthony  S.,   San  Francisco. 
Dibblee,  Albert  J.,  San  Francisco. 
Dinkelspiel;  Heniy  O.  W.*  San  Francisco. 
Docker,  P.  W.,  Fresno. 
Dockweiler,  Isidore  B.,  Los  AngelsR. 
Dockweiler,  Thos.  A.  J.,  Los  Angeles. 
Dole,  Edward  J.,  Petaluma. 
Donahue,  William  H.,  Oakland. 
Dooling,  Maurice  T.,  Jr.,  San  Frandsoo. 
Dom,  Winfleld,  San  Francisco. 
Dorr,  Frederick  W.,  San  Francisco. 
Dorsey,  J.  W.,  San  Francisco. 
Douglas,  J.  Franklin,  San  Francisco. 
Dow,  W.  A.,  San  Francisco. 
Downing,  William  S.,  San  Francisco. 
Doyle,  Clyde,  Long  Beach. 
Dreher,  Fred  L.,  San  Francisco. 
Drew,  A.  M.,  Fresna 
Drobisch,  Walter  E.,  San  Frandaco. 
Drum,  John  S.,  San  Francisco. 
Dunlap,  Boutwell,  San  Francisco. 
Dunne,  Frank  H.,  San  Francisco. 
Dunn,  Jesse  J.,  Oakland. 
Dwyer,  J.  J.,  San  Francisco. 
Eells,  Charles  P.,  San  Francisco. 
Ehrman,  Sidney  M.,  San  Francisco. 
Eickhoff,  Henry,  San  Francisco. 


Ellison,  Judge  John  P.,  Red  BlulT. 
Ellsworth,  Oliver,  San-  Francisco. 
Emmons,  George  E.,  Ross. 
Erskine,  Herbert  W.,  San  Francisco. 
Erskine,  Morse,  San  Franciioo. 
Estudillo,  Miguel,  Riverside. 
Evans,  Lyman,  Riverside. 
Evans,  Perry,  San  Franciaco. 
Eversole,  Keith  C,  Ukiah. 
Fallon,  Joseph  P.,  San  Francisco. 
Farmer,  Milton  T.,  San  Francisco. 
Faulconer,  Mrs.  Oda,  Los  Angeles. 
Finch,  Fabius  T.,  San  Francisco. 
Finch,  Wilbur  D.,  Los  Angeles. 
Fisher,  Eugene  I.,  Long  Beach. 
Fitch,  J.  R.,  Fresna 
Fitzgerald,  R.  M.,  Oakland. 
Fletcher,   Kimball,  Los  Angeles. 
Foerster,  Roland  C,  San  Frandsco. 
Foltz,  Clara  Shortridge,  Los  Angeles. 
Ford,  Tirey  L.,  San  Frandsco. 
Ford,  W.  J.,  Los  Angeles. 
Foulds,  E.  J.,  San  Frandsoo. 
Fourtner,  August  L.,  San  Francisco. 
Fratessa,  Paul  F.,  San  Frandaco. 
Freeman,  G.  R.,  Riverside. 
Freitas,  Lawrence  T.,  Stockton. 
Frohman,  Isaac,  San  Francisco. 
Frost,  C.  A  S.,  San  Frandsco. 
Fulton,   R.    M.,   Los   Angeles. 
Funke,  H.  W.,  Sacramento. 
Geibel,  Martin  E.,  Los  Angeles. 
Gerstle,  Mark  I.,  San  Frandaca 
Gherini,   Ambrose,  San  Frandsco. 
Gibbs,  George  A.,  PasadefUu 
Gibson,  hving  D.,  Sacramento. 
Gifford,  F.  W.,  Los  Angeles. 
Goldberg,  John  J.,  San  Francisco. 
Goodell,   C.   J.,   San   Frandsoo. 
Goodfellow,  Hugh,  San  Francisco. 
Goodman,  Louis  E.,  San  Frandsoo. 
Goodspeed,  Richard  C,  Lot  Angeles. 
Gordon,  Hugh,  San  Francisco. 
Gordon,  Hugh  T.,  Loa  Angeles. 
Gorrill,  William  H.,  San  Frandaco. 
Goebey,  P.  F.,  San  Jose. 
Graham,  Wm.  S.,  San  Frandsco. 
Granger.  Kyle  G.,  Los  Angeles. 
Grant,  William,  San  Francisco. 
Gray,  Chas.  A.,  San  Frandsca 
Gray,  Gordon,  San  Diego. 
Gray,  R.  S.,  San  Frandsoo. 
Gregoiy.  H.  D.,  Oroville. 
Gregory,  T.  T.  C,  San  Francisco. 
Griffith,  R.  Williams,  San  Francisco. 
Griffith,  W.  G.,  Santa  Barbara. 
Griffiths,  L.  P.,  San  Francisco. 
Qroene,  John  F.,  Daly  City. 


inSMBBBS  AND  DBLBQATKS  BSGI8TBBED. 


117 


Outhrle,  8.  W.,  Lob  Angelea. 

Haber,  Joseph  Jr.,  San  FranclBco. 

Ha6k«tty  O.  Nebon,  San  Franciaco. 

Hadaell,  Dan,  San  Francisco. 

Bahn,  BenJ.  W.»  Paiadena. 

Haluif  Edwin  F.,  Paaadena. 

Haines,  A.,  San  Diego. 

Haines,  Hartin  L.,  Los  Angeles. 

Hains,  T.  W.,  Oakland. 

Hale,  Theodore,  San  Francisco. 

Hall,  Frank,  San  FrandBoo. 

Hanbley,  F.  J.,  San  Jose. 

Hamm,  Lw  S.,  San  Francisco. 

Hammon,  Percy  Y.,  Loa  Angeles. 

Hanley,  James  M.,  San  Francisco. 

Hanloo,  Charles  F.,  San  Francisco. 

Hannum,  O.  S.,  Richmond. 

HardUig,  R.  T.,  San  Francisco. 

Hardy*  Ckrlos  S.,  Los  Angeles. 

Harris,  A.  P.,  Fresno. 

Harris,  IL  K.,  Fresno. 

Harrison,  Ifaurlce  £.,  San  Frandsco. 

Harrison,  Ridiard  O.,  San  Frandsoo. 

Hart,  John  W.,  Los  Angeles. 

HarvQr,  F.  N.,  Bakersfleld. 

Hatfield,  V.  Lw,  Sacramento. 

Haven,  Thomas  E.,  Ban  Francisco. 

Haven,  Harold  B.,  San  Franciaoo. 

Hanson,  Heniy,  Fresno. 

Hayhurst,  L.  B.,  Fresno. 

Haalett,  William  Los  Angeles. 

Healy,  Timothy,  San  Francisco. 

Hean^,  John  W.,  Santa  Barbara. 

Heller,  E.  S.,  San  Francisco. 

Hengstler,  Louis  T.,  San  Francisco. 

Henshall,  Richard  Percy,  San  Frandsoo. 

Herrington,  B.  A.,  Los  Angeles. 

Herrington,  George,  San  Francisco. 

Hettman,  Walter  E.,  San  Francisco. 
Hess,  W.  T.,  San  Francisco. 
Hewitt,  Leslie  R.,  Los  Angeles. 
Heywood,  John  Oxithrle,  San  Francisco. 
Hill,  Ohaffee  E.,  San  Frandsco. 
Hillyer,  Ourtia,  San  Diego. 
Hinckley,  Frank  E.,  San  Frandsca 
Hooker,  J.  W.,  Los  Angeles. 
Hodghead,  Beverly  L.,  San  Francisco. 
Hoge,  J.  Hampton,  San  Francisco. 

Hoefler,  L.  If.,  San  Frandsco. 
Hohfeld,  Edward,  San  Francisco. 
Hollxer,  Harry  A.,  Los  Angelea 
Houghton,  Edward  T.,  San  Frandsco. 

How,  Jared,  Ban  Francisco. 
Hubbard,  T.  W.,  San  Francisco. 
Hubbard,  William  P.,  San  Francisco. 

Hoebner,  F.  O.,  Fresno. 

Hughes,  Oharles  T.,  San  Frandsco. 

Humphrey,  0.  F.,  Ban  Franosoo. 


Humphreys,  William  Penn,  San  Fjrandsco. 
Hunsaker,  Wm.  J.,  Los  Angeles. 
Hunt,  William  H.,  San  Frandsco. 
Hunter,  Ben  S.,  Los  Angeles. 
Hutchinson,  Joseph  K.,  San  Frandsco. 
Hynes,  W.  H.  L.,  Oakland. 
Irving.  W.  G.,  Rlvexslde 
Jacks,  L.  S.,  San  Frandsco. 
Jackson,  B.  If.,  San  Frandsco. 
Jacobs,  Henry  A.,  San  Frandsco. 
James,  Frank,  Los  Angeles. 
James,  L.  L.  Jr.,  San  Francisco. 
Jameson,   Max.  D.,  Porterville. 
Jennings,  J.  B.,  Modesto. 
Jensen,  Oonstan,  Los  Angeles. 
Johnson,  J.  LeRoy,  Stockton. 
Johnson,  Lincoln  V.,  San  Frandsco. 
Jones,  Qeorge  L.,  Nevada  City. 
Jones,  Geo.  W.,  Fresno. 
Jones,  Herbert  OL,  San  Jose. 
Jones,  Madison  Ralph,  San  FranciKo. 
Jones,  Mattiflon  B.,  Los  Angeles. 
Jordan,  Thomas  O.,  San  Frandsca 
Judkins,  T.  O.,  San  Francisco. 
Kadlets,  Los  Angeles. 
Kapp,  Geo.  F.,  Long  Beach. 
Kaufman,  Helen,  San  Frandsco. 
Kauke,  Frank,  Fresno. 
Kaye,  W.  W.,  Bakersfleld. 
Keane,  Augustin  0.,  Si^  Francisco. 
Keeler,  P.  E.,  Long  Beach. 
Keesling,  Francis  V.,  San  Frandsco. 
Eehoe,  William,  San  Frandsoo. 
Kelly,  James  Raleigh,  San  Frandsco. 
Kelso,  Ivan,  Los  Angeles. 
Kemp,  John  W.,  Los  Angeles. 
Kennedy,  Lawrence  S.,  Redding. 
Kenney,  Elizabeth  L.,  Los  Angeles. 
Kerrigan,  Fiwik  H.,  San  Frandsoo. 
Keyes,  Alexander  D.,  San  Frandsco. 
Kidd,  A.  M.,  Berkeley. 
Kimball,  Rufus  H.,  San  Frandsco. 
King,  Percy  S.,  Napa. 
Kirfoy,  Lewis,  San  Diego. 
Kirk,  Joseph,  San  Frandsca 
Kirkbride,  Charles  N.,  San  Mateo. 
Knight,  E.  D.,  San  Frandsca 
Knight,  Samuel,  San  Frandsca 
Koford,  Joseph  S.,  Oakland. 
Kollmyer,  W.  B.,  San  Frandsco. 
Lady,  William  Ellis,  Los  Angeles. 
Lamson,  J.  S.,  San  Francisco. 
Langdon,  W.  H.,  San  Frandsco. 
Langhome,  James  P.,  San  Frandsco. 
Lansburgh,  S.  Laa,  San  Frandsoo. 
Laughlin,  Gail,  San  Frandsco. 
Lawlor,  William,  San  Frandsco. 
LawsoD,  Oord<»,  Los  Angeles. 


118 


AMSaiOAN   BAB  ASSOCIATION. 


Lee»  Bradner  W.,  Los  Angeles. 
Lee,  Bradner  Weill  Jr.,  Los  Angeles. 
Lee,  Kenyon  Farrar,  Los  Angeles. 
Leicester,  J.  F.,  San  Francisco. 
Leitoh,  Miss  Oonstanoe,  Lm  Angeles. 
Lennon,  Thos.  J.,  San  Francisco. 
Levinsky,  Arthur  L.,  Stockton. 
Lery,  David  L.,  San  Francisco. 
Levy,  Lawrence  L.,  San  Francisco. 
Lewis,  John  11.^  San  Francisco. 
Libby,  Warren  E.,  San  Diego. 
Liechti,  Arnold  W.,  San  Francisco. 
Lillick,  Ira  S.,  San  Francisca 
Lindl^,  Fred.  E.,  San  Diego. 
Lindsay,  Oarl,  Fresno. 
Lingenhelter,  O.  Homer,  San  Francisco. 
Linney,  H.  H.,  San  Francisco. 
Loeb,  Albert  I.,  San  Francisco. 
Loeb,  Joeeph  P.,  Los  Angeles. 
Loewy,  Walter,  San  Francisco. 
Long,  Perqy  Y.,  San  Francisco. 
Lovell,  Charles  H.,  San  Francisco. 
Luce,  Edgar  A.,  San  Di^o. 
Lum,  Burt  F.,  San  Francisco. 
Lyders,  E.,  San  Francisco. 
MacNeil,  Sayre,  Los  Angeles. 
McAuliife,  F.   K.,   San   Francisco. 
McCaughan,  Geo.  E.,  Long  Beach. 
McCaughey,  J.  W.,  San  Francisco. 
McCorkle,  John  ^.,  San  Diego. 
McCormick,  Paul  J.,  Los  Angeles. 
McCoy,  A.  M.,  Red  BluiT. 
McCutchen,  Edward  J.,  San  Francisco. 
McDaniel,  Eugene  P.,  Marysville. 
McDill,  George  W.,  Los  Angeles. 
McEnerney,  Garret  W.,  San  Francisco. 
Mclnioeh,  Miles  W.,  San  Francisco. 
McKeon,  Joseph  B.,  San  Francisco. 
McKevitt,  Hugh  K.,  San  Francisco. 
McKinlQT,  James  W.  Jr.,  Los  Angeles. 
McKinstry,  J.  C,  San  Francisco. 
McLaughlin,  C.  £.,  Sacramento. 
McNab,  Gavin,  San  Francisco. 
McNitt,  Rollin  L.,  Los  Angeles. 
McNoble,  George  F.,  Stockton. 
McNuIty,  Frederick,  San  Francisco. 
McNutt,  Maxwell,  San  Francisco. 
McWhinney,  C.  C,  Long  Beach. 
McWllliams,  R.  L.,  San  Francisco. 
Madison,  Frank  D.,  San  Francisco. 
Magee,  E.  DeLoe,  San  Francisco. 
Maher,  D.  F.,  Watsonville. 
Mahon,  K.  S.,  Tuba  City. 
Malcolm,  Norman  E.,  Palo  Alto. 
Mann,  Seth,  San  Frandsoo. 
Marrin,  Paul  S.,  San  Francisco. 
Marshall,  Humphrey,  Los  Angeles. 
Marshall,  John  W.,  San  Francisco. 


Martin,  George  Miner,  Los  Angeles. 
May,  Henry  F.,   San  Francisco. 
May,  Prof.  Samuel  C,  University  of  Cat. 
Mazuran,  Marion  J.,  San  Francisco. 
Metteer,  0.  F.,  Sacramento. 
Meyerstein,  Joeeph  O.,  San  Francisco. 
Michelson,  Albert,  San  Francisco. 
Miller,  H.  B.  M.,  San  Francisco. 
Miller,  J.  Paul,  San  Francisca 
Miller,  John  H.,  San  Francisco. 
Miller,  K.  A.,  Los  Angeles. 
Milverton,  Frederick  W.,  San  Francisco. 
Mirow,  William  G.,  San  Diego. 
Mitchell,  Edward  J.,  San  Francisco. 
Molkenbuhr,  S.  W.,  San  Francisco. 
Monroe,  Charles,  Los  Angelesi 
Monroe,  Henry  E.,  San  Francisco. 
Monteagle,  Paige,  San  Francisco. 
Moore,  Stanley,  San  Francisco. 
Moran,  Edward  F.,  San  Francisco. 
Moran,  Nathan,  San  Francisco. 
Morris,  Chas.  B.,  San  Francisco. 
Morris,  Leon  E.,  San  Francisco. 
Morrison,  Fred  W.,  Los  Angelesw 
Morrow,  Wm.  W.,  San  Francisco. 
Mossholder,  W.  J.,  San  Diego. 
Mott,  John  G.,  Los  Angeles. 
Moulthrop,  J.  R.,  San  Francisco. 
Mueller,  Oscar  O.,  Los  Angeles.  .^ 

Myers,  I«ouis  W.,  Los  Angeles. 
Nathan,  Milton  A.,  San  Francisco. 
Newby,  Nathan,  Los  Angeles. 
Newhouse,  Hugo  D.,  San  Francisco. 
Newmark,  Milton,  San  Francisco. 
Newlin,  Gumey  E.,  Loe  Angeles. 
Neylan,  John  Francis,  San  Francisco. 
Noble,  Col.  Robert  H.,  San  Francisco. 
North,  H.  H.,  Berkeley. 
Oatman,  O.  H.,  San  Ftancisco. 
O'Brien,  J.,  San  Francisco. 
O'Connor,  J.  Robert,  Los  Angeles. 
Oddie,  Clarence  M.,  San  Francisco. 
O'Donnell,  Joseph  E.,  San  Francisco. 
O'Donncll,  William  T.,  Fairfield. 
O'Duque,  Gabriel,  Los  Angeles. 
Oliver,  Boyd,  San  Francisco. 
Olney,  Warren  Jr.,  San  Francisco. 
O'Neil,  R.  K.,  San  Jose. 
Ong,  Walter  C,  Pasadena. 
Ombaun,  Casper,  San  Francisco. 
Otis,  Edwin  M.,  San  Francisco. 
Owens,  Madison  T.,  Whittier. 
Pace,  Troy,  Los  Angeles. 
Page,  Benjamin  E.,  Los  Angeles. 
Pardee,  J.  A.,  Susanville. 
Pardee,  J.  E.,  Susanville. 
Parker,  Robert  S.,  Pasadena. 
Parker,  S.  R.,  Bridgeport. 


HBHBSRS   AKD  DELEGATES  BE0I8TEEED. 


119 


Patton,  OhM.  L.,  San  Francisco. 
Pawlicki,  T.  E.,  San  Francisco. 
Peaira,  H.  A.,  Bakerafield. 
Peart,  Hartley  F.,  San  Francisco. 
Pease,  Robert  IC.,  Los  Angeles. 
Peck,  Charles  IL,  Oakland. 
Peck,  James  Francis,  San  Francisco. 
Perkins,  Thomas  A.,  San  Francisco. 
Peterson,  Fred  O.,  San  Francisco. 
Pelree,  L.  E.,  San  Jose. 
Pelzotto,  Edgar  D.,  San  Francisco. 
Phillips,  ICisB  Ester  B.,   San  Francisco. 
Phleger,  Herman  B.,  San  Francisco. 
Plcard,  Albert,  San  Francisco. 
Pigott,  John  T.,  Sacramento. 
Pillsbuiy,  H.  D.,  San  Franditco. 
Pillsbury,  Warren  H.,  San  Francisco. 
Plunmier,  J.  A.,  Stockton. 
Plunkett,  W.  T.,  San  Francisco. 
Porter,  Frank  !£.,  Los  Angeles. 
Porter,  Robert  O.,  San  Francisco. 
Postel,  Waldo  F.,  San  Francisco. 
Potter,  Charles  F.,  Los  Angeles. 
Powell,  W.  K.,  San  Francisco. 
Pratt,  Elinor  D.,  San  Francisco. 
Pratt,  0.  C,  Jr.,  San  Francisco. 
Preston,  H.  L.;  Ukiah. 
Preston,  John  W.,  San  Francisco. 
Price.  Frands,  Santa  Barbara. 
Prlchard,  George  A.,  Los  Angeles. 
Prlngle,  E.  J.,  San  Francisco. 
Piye,  Benjamin  E.,  Los  Angeles. 
Pyle,  E.  C.,  Los  Angeles. 
Quina,  James  G.,  Oakland. 
Ragbrnd,  R.  B.,  San  Francisco. 
RedingtOD,  Arthur  H.,  San  Francisco. 
Redman,  L.  A.,  San  Francisco. 
Rendoo,  C.  P.,  Stockton. 
R^P7>  Roy  ^M  I'M  Ai^r^les. 
Reslenre,  J.  F.,  San  Francisco. 
Retburg,  Joseph  D.,  San  Francisco. 
Reynolds,  Howard  W.,  Los  Angeles. 
Richards,  David  W.,  San  Bernardino. 
Richardson,  Robert  W.,  Lor  .\nge1es. 
Richter,  Erwin  E.,  San  Francisco. 
Rickard,  James  B.,  Santa  Barbara. 
Ridgway,  Thos.  C,  Los  Angeles. 
Riggins,  darenoe  N.,  Napa. 
Riley,  Stanislaiw  A.,  San  Francisco. 
Ring,  William  0.  Jr.,  Madera. 
Rizford,  E.  H.,  San  Francisco. 
Rizford,  Halsey  L.,  San  Francisco. 
Robinson,  E.  C,  Richmond. 
Robinson,  Elmer  O.,  San  Francisco. 
Robinson,  Thos.  W.,  Los  Angeles. 
Roche,  Theo.  J.,  San  Francisco. 
Roefal,  A.  B.,  San  Francisco. 
Rogers,  Merle  J.,  Ventura. 


Robe,  CliiTord  A.,  Los  Angele& 
Rose,  Frederick  J.,  Chioo. 
Rose,  Wm.  F.,  San  Francisco. 
Rosendalc,  Chas.  R.,  Salinas. 
Rosenfleld,  Adolph  B.,  Long  Beach. 
Rosenshlne,  Albert  Ai,  San  Francisco. 
Ross,  Hall  O.,  Redwood  City. 
Ross,  Lee  T.,  Redwood  City. 
Rothchild,  Walter,  San  Francisco. 
Rowan,  John  M.,  BakersAeld. 
Rowland,  A.  Lincoln,  Pasadena. 
Runham,  Frank  C,  Pasadena. 
Sample,  E.  P.,  San  Diego. 
Sampsell,  Paul  Warren,  Los  Angeles. 
Samuels,  Judge  Oeoige,  Oakland. 
Samuels,  Marcus  Lome,  San  Francisco. 
Sanderson,  A.  A.,  San  Francisco. 
Sapiro,  Milton  D.,  San  Francisco. 
Sargent,  Geo.  Clark,  San  Francisco. 
Sawyer,  Harold  M.,  San  Francisco. 
Schauer,  Fred  H.,  Santa  Barbara. 
Schapiro,  Esmond,  San  Francisco. 
Schlesinger,  Bert,  San  Francisco. 
Schlesinger,  Mrs.  Amanda,  San  Francisco. 
Schmulowitz,  Nat,  San  Francisco. 
Schunck,  Dorothea,  San  Francisco. 
Scott,  James  Walter,  San  Francisco. 
Scott,  Joseph,  Los  Angeles. 
Scott,  Russell,  Salinas. 
Scott,  Thomas,  BakersAeld. 
Searls,  Oarrdl,  Nevada  City. 
Searls,  Robert  M.,  San  Francisco. 
Selby,  John  R.,  San  Francisco. 
Shapiro,  Leo.  H.,  San  Francisco. 
Sharpsteen,  W.  C,  San  Francisco. 
Shaw,   Arvin  B.   Jr.,  Los  Angeles. 
Shaw,  A.  E.,  San  Francisco. 
Shaw,  Luden,  San  Francisco. 
Shenk,  John  W.,  Los  Angeles. 
Shepherd,  Howard  T.,  Los  Angeles. 
Sherlock,  Alva  S.,  Concord. 
Sherman,  J.  P.,  San  Francisco. 
Sherman,  Roger,  San  Francisco. 
Short,  John  Douglas,  San  Frandsco. 
Shuey,  darence  A.,   San  Frandsco. 
Shurtleff,  Charles  A.,  San  Frandsco. 
Silva,  Frank  M.,  San  Frandsco. 
Sinclair,  John  A.,  San  Frandsco. 
Singer,  W.   Menzies,  San  Frandsco. 
Silverstein,  Bernard,  Oakland. 
Simmons,  William  M.,  San  Frandsco. 
Simons,  Seward  A.,  Los  Ange.es. 
Sinton,   Edgar,   San  Frandsco. 
Skaife,  Alfred  C,  San  Frandsco. 
Skinner,  Newton  J.,  Lot  Angdes. 
Slack,  Charles  W.,  San  Frandsco. 
Slack,    Walter,    San   Frandsco. 
Slosaon,  Leonard  B.,  Los  Angeles. 


120 


AMEiaOAN  BAB  ASSOCIATION. 


8I08S,  If.  0.»  San  Francisco. 
Smith,  De  Lanccy  O.,  San  Franclaco. 
Smith,  Joel  H.,  Selma. 
Smith,   Wilbur  R.  Jr.,  San  Francisco. 
Smith,  Willard  P.,  San  Francisco. 
Smith,  William  H.  Jr.,  San  Francisco. 
Smith,  Winfleld  R.,  San  Francisco. 
Soto,  R.  IC.  F.,  Sao  Francisco. 
Spence,  Homer  R.,  San  Francisco. 
Spriffff,  Patterson,  San  Diego. 
Squier,  E.  W.,  Santa  Barbara. 
St.  Sure,  A.  F.,  Oakland. 
Stammer,   W.    H.,   Fresno. 
Stanwood,  Edward  B.,  Marysville. 
Steinhart,  Jesse  H.,  San  Francisco. 
Stevens,  Henry  J.,  Los  Angeles. 
Stevens,   Ifartin,   San  Francisco. 
Stevens,  Samuel  S.,  San  Francisco. 
Stevick,  Ouy  LeRoy,  San  Francisco. 
Stickney,  J.  K.  Jr.,  Los  Angeles. 
Stickney,  J.  E.  Jr..  San  Diego. 
Stidger,  0.   P.,   San  Francisco. 
Stimson,   Manball,  Los  Angeles. 
Stone,  Byron  F.  Jr.,  San  Francisca 
Stone,  Leonard,  Fort  Bragg. 
Stoney,    Oaillard,    San   Francisco. 
Stringham,  Frank  D.,  San  Franciaca 
Strong,  Charles  A.,  San  Fraodsoo. 
Strother,    S.    L.,    Fresno. 
Stuart,  Z.  B.,  Los  Angeles. 
Sturtevant,  Geo.  A.|  San  Fnnciaoo. 
Sullivan,  Jeremiah  F.,  San  Francisco. 
Sullivan,  Matt  I.,  San  Francisco. 
Susman,  Leo.  H.,  San  Francisca 
Sweet,  Joe  G.,  San  Francisco. 
Tapacott,  Jaa.  R.,  Treka. 
Tasheira,  Arthur  O.,  Oakland. 
Taylor,  E.  E.,  Pasadena. 
Tharp,  Lawrence,  San  Francisco. 
Thelen,  Max,  San  Francisco. 
Theisen,  S.  Joseph,  San  Francisco. 
Thomas,  F.  F.  Jr.,  San  Francisco. 
Thomas,  James  M.,  San  Francisco. 
Thomas,  William,  San  Francisco. 
Thompson,  Judge  R.  L.,  Santa  Rosa. 
Thorns,  C.  L.,  Los  Angeles. 
Ticknor,  Harry  M.,  Pasadena. 
Tordiiana,  H.  van  O.,  San  Francisco. 
Torregano,  Ernest  J.,  San  Francisco. 
Towne,  Percy  £.,  San  Francisco. 
Townsend,  Chaa.  E.,  San  Francisco. 
Treadwell,  E.  F.,  San  Francisca 
Treat,  A.  J.,  San  Francisco. 
Treraont,  Edwin  J.,  San  Francisco. 
Tribit,  Ohas.  H.  Jr.,  Los  Angeles. 
Trowbridge,  Delger,  San  Francisco. 
Tupper,  W.  C,  Frcana 
Turrentine,  Lw  N.»  Esoondido. 


Tuttle,  Obarles  A.,  Fresno. 
Tyler,  0.  H.,  Long  Beach. 
Tyler,  Mrs.  Harriet  P.,  San  Francisco. 
Tyler,  John  F.,  Hayward. 
U'Ren,  Milton  T.,  San  Francisco. 
Valentine,  L.  H.,  Los  Angeles. 
Van  Duyn,  Owen  K.,  San  Francisco. 
Van  Dyke,  B.  P.,  Sacramento. 
Van  Fleet,  Alan  C,  San  Francisco. 
Van  Fleet,  Ransom  Oar^,  San  Francisco. 
Van  Yranken,  Edward,  Stockton. 
Van  Wyck,  Sidney  Millechen,  &  Frandsoo. 
Van  Wyck,  Sidney  M.  Jr.,  San  Francisco. 
Variel,  Robert  H.  F.,  Jr.,  Loa  Angeles. 
Varaum,  George  M.,   Berkeley. 
Vaughn,  Orville  R.,  San  Franciaoa 
Waldo,  George  £.,  Pasadena. 
Wallace,  Bradley  L.,  San  Francisco. 
Wallace,  W.  B.,  Visalia. 
Wallace,   Gerald    B.,    Stodcton. 
Walters,  Byron  J.,  San  Diego. 
Walters,  R.  T.,  Los  Angeles. 
Ward,  Chandler  P.,  Los  Angeles. 
Ward,  Shirley  C,  Loa  Angeles. 
Warlow,  Chester  H.,  Fresno. 
Waste,  William  H.,  Berkeley. 
Watkinson,   Cbas.   E.,   Hanford. 
Watson,  W.  W.,  San  Francisco. 
Watt,  RoUa  B.,  San  Francisco. 
Webb,  Arthur  C,  Los  Angeles. 
Webb,  Joseph  J.,  San  Francisco. 
Wehe,  Frank  R.,  San  Francisco. 
Weil,  A.  L.,  San  Frandsoo. 
Weinberger,  Herman,  San  Francisco. 
Weinberger,  Jacob,   San  Diego. 
Welch,  J.  R.,  San  Jose. 
Westover,  Myron,  San  Francisco. 
Weyl,  Bertin  A.,  Loa  Angeles. 
Whalen,  James  D.,  San  Frandsco. 
Wheeler,  Charles  S.,  San  Francisco. 
White,   Carlos  G.,  Oakland. 
White,  Chas.  W.,  San  Francisco. 
White,   Earl  D.,   Oakland. 
White,   Herbert  E.,   Sacramento. 
White,  Thos.  R.,  San  Francisco. 
White,  William  E.,  San  Francisco. 
Whiting,   Randolph   V.,  San  Francisca 
Whitson,  Robert,  San  Francisca 
Whittier,  Clarke  B.,  Stanford  University. 
Whittle,   Albert  L.,  Oakland. 
Whittlesey,  Geo.  P.,  Pasadena. 
Wiel,  Samuel  C.  San  Francisco. 
Wilbur,  Curtis  D.,  San  Frandsca 
Wilcox,  Edwin  A.,  San  Jose. 
Williams,  E.  S.,  Los  Angeles. 
Williams,    Eugene   D.,   Los   Angeles. 
Willis,  Frank  R.,  Los  Angeles. 
Wilson,   Edgar  H.,  San  Francisco. 


ICBICBSBS  AND  DBLB0ATE8  BE0I8TEBED. 


121 


Wilson,  Emmet  H.,  Lob  Angeles. 
Wilson,  John  RAlph,  San  Franciaco. 
Wilson,  Mountford  S.,  San  Francisca 
Wittschen,  T.  P.,  Oakland. 
Wolfe,   R.  N.,  Pittsburg. 
Wolff,  Harry  E.,  San  Francisco. 
Wood,   Jdbn  Perry,   Pasadena. 
Woten,  John  W.,  San  Francisco. 
Wretman,  Niles  E.,  San  Joee. 
Wright,  Alfred,  Loe  Angeles. 
Wright,  Allen  G.,  San  Francisco. 
Wright,   Austin  T.,  San   Francisco. 
Wright,  Geo.  T.,  San  Francisco. 
Wright,  H.   M.,   San  Francisco. 
Wright,  Ralph  H.,  Martinez. 
Wrii^t,  R.  M.,  San  Jose. 
Wyckoff,  H.  O.,  Watsonville. 
Yale,   Un.   Margaret  D.,   Burbank. 
York,  Waldo  M.,  Los  Angeles. 
Young,  Lyndol  L.,  Los  Angeles. 
Young,  Milton  K.,  Los  Angeles. 

CX)LORADO. 

Allen,  Geo.  W.,  Denver. 

Brock,  Chas.  R.,  Denver. 

Oarr,  Ralph,  Antonito. 

Dillon,  William,  Oastle  Rock. 

Ewing,  John  A.,  Denver. 

Fry,  John  H.,  Denver. 

Geijd>eek,   J.  B.,  Denver. 

Goudy,  F.  B.,  Denver. 

Hawley,    Joseph  W.,    Trinidad. 

Button,  William  E.,  Denver. 

Killian,   James  R.,   Denver. 

Lathrop,  Mary  F.,  Denver. 

O'Donnell,  T.  J.,  Denver. 

Rothrock,  James  H.,  Colorado  Springs. 

Seeman,   Bernard  J.,  Denver. 

OONNEOnCUT. 

Avery,  Christopher  L.,  Groton. 
Beers,  George  E.,  New  Haven. 
Brosmith,  William,  Hartford. 
Day,  Edward  W.,  Hartford. 
Peasley,  Frederick  M.,  Cheshire. 

DELAWARE. 

Laifey,  J.  P.,  Wilmington. 
Marvel,  Joeiah,   Wilmington. 

DISTRICT    OF    COLUMBIA. 

Ash,  Robert,  Washington. 
Brock,  Charles  E.,  Cleveland,  O.,  ft  Wash. 
Butler,  Cbas.  Henry,  Washington. 
Byrne,  John  J.,  Washington. 
Carpenter,  W.  Clayton,   Washington. 


Carusi,  Charles  P.,   Washington. 
Oaton,  Harry  B.,  Washington. 
Chamberlin,   Justin  Morrill,   Washington. 
Oompton,  Wilson,  Washington. 
Ellis,  Wade  H.,  Washington. 
Freeberg,  Harriet,  Washington. 
Hagerman,  James  Jr.,  Washington. 
King,  George  A.,  Wadiington. 
Meyers,  Ida  M.,  Washington. 
Peacock,  Jam^  Craig,  Washington. 
Pike,  Miss  Katherine  R.,  Washington. 
Scott,  James  Brown,  Washington. 
Siddon,  Fred.  L.,  Washington. 
Smith,  J.   N.   O.   Lewis,  Washipgtoo. 
Sullivan,  William  C,  Washington. 
Taliaferro,  Sidney  F.,  Washhigton. 
Thurtell,  Henry,  Washington. 
Tyler,  Frederick  S.,  Washington. 
Weitzel,  George  T.,  Waahingt<m. 
Willebrandt,  Mabel  Walker,  Washhigton. 
Williams,  George  Francis,  Washington. 

FLORIDA. 

Ajctell,  E.  P.,  Jacksonville. 
Bishop,  Henry  W.,  Eustioe. 
Orichlow,  W.  B.  Shelby,  Br«ientawn. 
Oibbs,   George  Cooper,  Jacksonville. 
Hampton,  Hilton  S.,  Tampa. 
Hampton,   W.   W.,  Gainesville. 
Hazard,  Julian  L.,  Tampa. 
Hunter,  Wm.,  Tampa. 
Loftin,  Scott  M.,  Jadcsonville. 
Price,  Nuthell  D.,  Miami. 
Price,  William  H.,  Miami. 
Warlar,  Freitus,  Orlando. 

GEORGIA. 

Gazan,  Jacob,  Savannah. 
Gilbert,   S.  Price,   Atlanta. 
Oliver,   Francis  McDonald,   Savannah. 
Powell,  Arthur  Gray,  Atlanta. 
Sibley,   John  A.,   Atlanta. 
Stephens,  Alex  W.,  Atlanta. 

HAWAIIAN  ISLANDS. 

Ashford,  Marguerite  K.,  Honolulu. 
Lymer,  William  B.,  Honolulu. 
Marx,  BenJ.  L.,  Honolulu. 

IDAHO. 

Ailshie,  James  F.,  Coeur  d'  Alene. 
Bothwell,  James  R.,  Twin  Falls. 
Hawley,  James  H.,  Boise. 
Kruger,  Gustave,  Boise. 
Martin,  G.  H.,  Sandpoint. 


132 


AMERICAN   BAR   ASSOCIATION. 


ILUNOIS. 

Barnett,  O.  B.,  Chicago. 
Berger,  Henry  A.,  Chicago. 
Bledsoe,  S.  T.,  Chicago. 
Breckenridge,  James  J.,  Chicago. 
Brown,  Frederick  A.,  Chicago. 
Cameron,  J<An  IC,  Chicago. 
Carter,  Orrin  N.,  Chicago. 
Colwell,  Clyde  C,  Chicago. 
Denning,  COarence  P.,  Chicago. 
Early,  A.  D.,  Rockford. 
Eastman,  Alhert  N.,  Chicago. 
Elliott,  John  M.,  Peoria. 
Fassett,  Engene  O.,  Chicago. 
FoUansbee,  Mitchell  D.,  Chicago. 
Fullerton,   William  D.,   Ottawa. 
Goodwin,  Clarence  N.,  Chicago. 
Barley,  Herbert,  Chicago. 
Havard,  O.  H.,  Chicago. 
Hay,  Logan,  Springfield. 
Henry,  Louis,  Chicago. 
Higbee,  Harxy,  Plttsfleld. 
Hoag,  Parker  H.,  Chicago. 
Howe,  Thomas  Francis,  Chicago. 
Hughes,  John  E.,  Chicago. 
Kahn,  Nat.  M.,  Chicago. 
King,  Florence,  Chicago. 
Liss,  Max.  C,  Chicago. 
LisB,  Rebecca  WUlner,  Chicago. 
Liz.  Mrs.  C,  Chicago. 
MacChesney,  Nathan  William,  Chicago. 
MacLeiah,  John  E.,  Chicago. 
Marshall,  Thomas  Lw,  Chicago. 
Massena,  Roy,  Chicago. 
Maxwell,  William  W.,  Chicago. 
McCormlck,  Howard  H.,  Chicago. 
MacCracken,  Wm.  P.  Jr.,  Chicago. 
MoKnli^t,  Richard,  Chicago. 
Montgomeiy,  John  R.,  Chicago. 
Murray,   Frank   B.,  Chicago. 
Page,  Geo.  T.,  Peoria. 
Page,  Gerald  H.,  Peoria. 
Pam,  Hugo,  Chicago. 
Perel,  Harxy  Z.,  Chicago. 
Richards,  John  T.,  Chicago. 
Robinson,  R.  D.,  Galesburg. 
Rogers,  Edward  S.,  Chicago. 
Rubinkam,  Nathaniel,  Chicago. 
Rummler,  William  R.,  Chicago. 
Shabad,  Henry  M.,  Chicago. 
Sherman,  Roger,  Chicago. 
Stevens,  George  M.,  Chicago. 
Thompson,  Joseph  J.,  Chicago. 
Tolman,  Edgar  B.,  Chicago. 
Van  Natta,  John  E.,  Chicago. 
Welch,  Ninian  H.,  Chicago. 
Whitnel,  L.  0.,  Bast  8t  Louis. 


Woodward,  Frederic  C,  Chicago. 
Zimmerman,  E.  A.,  WUmette. 

INDIANA. 

Carney,  John  Ralph,  Vernon. 
Davis,  Paul  G.,  Indianapolis. 
Ewbank,  Louis  B.,  Indianapolis. 
HeavillB,  Roecoe  A.,  Marion. 
Kelley,  William  H.,  Richmond. 
Eirkpatrick,  Lex  J.,  Eokomo. 
McTuman,  Clair,  Indianapolis. 
Martlndale,  Charles,  Indiam^olii. 
Moores,  Merrill,  Indianapolis. 
Ratclife,  0.  B.,  Covington. 
Rooker,  William  Velpeau,  Indianapolis. 
Sheridan,  Harxy  C,  Frankfort. 
Shirley,  C.  C,  Indianapolis. 
Simms,  Dan.  W.,  Lafayette. 
Stevenson,  Elmer  E.,  Indianapolis. 

IOWA. 

Carr,  E.  M.,  Manchester. 
Chamberlain,    Wm.,   Cedar   Rapids, 
deary,  T.  P.,  Sioux  City. 
Devitt,  James  J.,  Oskaloosa. 
Devitt,  J.  F.,  Muscatine. 
Dutcher,  Chas.  M.,  Iowa  City. 
Forrest,  Leland  S.,  Des  Moines. 
Johnson,  Elmer  A.,  Cedar  Rapids. 
Macomber,  Chas.  S.,  Ida  Grove. 
Martin,  Wesley,  Webster  City. 
McCoy,  Jotai  N.,  Oskaloosa. 
Miller,  Jesse  A.,  Des  Moines. 
Roddewig,  Louis  E.,  Davenport. 
Sawyer,  Haxen  I.,  Keokuk. 
Shull,  D.  C,  Sioux  City. 
Wisdom,  Frank,  Bedford. 

KANSAS. 

Burch,  R.  A.,  Topeka. 
Dawson,  John  S.,  Topeka. 
Dean,  John  S.,  Topeka. 
Drenning,  Frank  Q.,  Topeka. 
Evans,  Earle  W.,  Wichita. 
Ganse,  Henry  E.,  Emporia. 
Houston,  J.  D.,  Wichita. 
Keene,  A.  M.,  Fort  Scott, 
^ng,   Chester  I.,  Wichita. 
Matson,  Cliff.  A.,  Wichita. 
McAnany,  Edwin  S.,  Kansas  City. 
Osmond,  Wm.,  Great  Bend. 
Pulsifer,  Park,  Concordia. 
Smith,  Chas.  Blood,  Topeka. 
Smith,  F.  Dumont,  Hutchinson. 
Smith,  William  R.,  Topeka. 
Williams,  A.  F.,  Topeka. 


MBMBBBS  AND  DSLE0ATB8  REGISTERED. 


188 


KBNTUOKT. 

BuUitt,  Wm.  llanhftll.  LoultyiUe. 
Doolan,  J<rim  d  Loaisville. 
Hunt,  Geoig*  R.,  Lexliigtoiu 
Martin,  Qtotge  B.,  Cktlettilnirg. 
Rutledse»  Arthur  Ifiddleton,  LoQiavllle. 
Walton,  Matt  S.,  Lexington. 

LOmSIANA. 

OroM,  T.  Jones,  Baton  Rouge. 
Dart,  Henry  P.,  New  Orleans. 
De  Lucas,  Clarence,  New  Orleans. 
Oeasner,  Jes^y  Benedict,  New  Orleans. 
Gilmer,  Quinaley,  Shreveport. 
Hart,  W.  0.,  New  Orleans. 
Henry,  Burt  W.,  New  Orleans. 
Kammer,  Alfred  0.,  New  Orleans. 
Lemann,  Walter,  DonaldsonvUle. 
ProYosty,  Oliver  0.,  New  Orleans. 
Rice,  Frazer  L.,  New  Orleans. 
Spearing,  J.  Zacfa.,  New  Orleans. 
Thornton,  R.  S.,  Alexandria. 
Waguespack,  W.  J.,  New  Orleans. 
Young,  W.  W.,  New  Orleans. 

MAINE. 

Hanaon,  George  M.,  Calais. 
Reynolds,  Edward  C,  Portland. 
Ritchie,  Arthur,  Belfast. 

MARYLAND. 

Barton,  Randolph,  Jr.,  Baltimore. 
Briacoc,  John  P.,  Prince  Frederick. 
Coshwa,  G.  F.,  Baltimore. 
Gorter,  James  P.,  Baltimore. 
Hlnkl^,  John,  Baltimore. 
Kemp,  W.  Thomas,   Baltimore. 
Lamar,  W.  H.,  Rockrille. 
Markell,  Oiarlea,  Baltimore. 
Tiffany,  Herbert  T.,  Baltimore. 
Tucker,  John  T.,  Baltimore. 
Williams,  Geo.  Weema,  Baltimore. 

MASSACHUSETTS. 

Anderson,  George  W.,  Boston. 
Bufflngtoo,  Harold  S.  R.,  Fall  River. 
Carroll,  William  J.,  Lowell. 
Clapp,  Robert  P.,  Lexington. 
Cook,  Robert  A.  B.,  Boston. 
HoIumb,  Miai  Sybil  H.,  Boston. 
Kingsley,  Mn.  Rose,  Cambridge. 
Lowell,  John,  Boston. 
O'Connell,  Joaeph  F.,  Boston. 
Smith,  Reginald  Heber,  Boston. 
Weiler,  Harriet,  Boston. 
Williston,  Samuel*  Cambridge. 


MIOHIGAK. 

Ajgler,  Ralph  W.,  Ann  Arixvr. 
Atkinson,  Frank  W.,  Detroit. 
Bates,  Henry  Moore,  Ann  Aibor. 
Colgrove,  P.  T.,  Hastinga. 
Corliss,  John  B.,  Detroit. 
Hooper,  Joaeph  L.,  Battle  Creek. 
Hull,  Oscar  C,  Detroit. 
Millis^  Wade,  Detroit 
Nutten,  Wesley  L.»  Detroit 
Onen,  Bernard  J.,  Battle  Creek. 
Rossman,  R.  H.,  Jackson. 
Whiting,  Justin  R.,  Jackson. 

MINNESOTA. 

Brown,  Rome  G.,  Minneapolis. 
Bruce,  Andrew  A.,  Minneapolis. 
Burr,  Stiles  W.,  St  Paul. 
Child,  S.  R.,  Minneapolis. 
Cbristensen,  Henry  0.,  Rochester. 
Deutsch,  Henry,  Minneapolis. 
Famham,  Charles  W.,  St  Paul. 
Graves,  William  G.,  St  Paul. 
Hilton,  Clifford  L.,  St  Paul. 
Junell,  John,  Minneapolis. 
Kingsley,  George  A.,  Minneapolis. 
Meighen,  John  F.  D.,  Albert  Lea. 
Mitchell,  Morris  B.,  Minneapolis. 
Paul,  A.  C.|  Minneapolis. 
Prendergast  Edmund  A.,  Minneapolis. 
Randall,  Henry  E.,  St  Paul. 
Robertson,  James,  Minneapolis. 
Sanborn,  Bruce  W.,  St  Paul. 
Severance,  C.  A.,  St  Paul. 
Shearer,  James  D.,  Minneapolis. 
Turner,  S.  E.,  St  Paul. 

MISSISSIPPI. 

Anderson,  W.  D.,  Jackson. 
Hirsch,  J.  K.,  Yicksburg. 
Sexton,  J.  S.,  Haielhurst 
Watkins,  W.  H.,  Jackson. 

MISSOURI. 

Berth,  Irvin  Y.,  St  Louis. 
Boyle,  Murat  Kansas  City. 
Bush,  Chas.  M.,  Kansas  City. 
Claiborne,  James  R.,  St  Louis. 
Cloud,  W.  H.,  Kansaa  City. 
Harkless,  Jas  H.,  Kansaa  City. 
Holt  William  G.,  Kansaa  City. 
Langknecht  Carl  H.,  Kansas  City. 
McCune,  H.  Lw,  Kansas  City. 
McQuillin,  Eugene,  St  Louis. 
Minnis,  Jamea  L.,  St  Loula. 
Painter,  Earl  H.,  St  Loola. 
Piatt,  W.  H.  H.,  Kansaa  City. 


124 


AMBBIOAK  BAB  ASSOOIATION. 


Scarrett,  A.  D.,  KanMs  Oity. 
Scarritt,  Wm.  O.,  Kansu  Oitj. 
Sher,  Louis  R.,  St  Louis. 
Sturdevant,  W.  L.,  St.  Louis. 
Watson,  I.  N.,  Kansas  Oity. 
Wylder,  L.  Newton,  Kansas  Oitj. 

MONTANA. 

Pigott,  William  T.,  Helena. 
Spaulding»  0.  A.,  Helena. 
Walsh,  James  A.,  Helena. 

NEBRASKA. 

Allen,  W.  J.,  Schuyler. 
Blackburn,  Thomas  W.,  Omaha. 
Brogan,  Francis  A.,  Omaha. 
Hastings,  W.  O.,  Omaha. 
Hobart,  R.  W.,  G«ring. 
Kennedy,  Howard,  Omaha. 
Letton,  Obaa.  B.,  Lincoln. 
Loomls,  N.  H.,  Omaha. 
MorrisBy,  A.  M.,  Lincoln. 
Myers,  Hugh  A.,  Omaha. 
Randall,  Frank  E.,  Omaha. 
Randall,  William  L.,  Omaha. 
Van  Orsdel,  R.  A.,  Omaha. 
Wells,  Arthur  R.,  Omaha. 

NEVADA. 

Averill,  Mark  R.,  Tonopah. 
Ayres,  Albuth,  Reno. 
Badt,  Wilton  B.,  Elko. 
Brown,  George  S.,  Reno. 
Brown,  Hugh  Henry,  Tonopah. 
Busteed,  Richard,  Las  Yegu, 
Campbell,  Louis  Q.,  Winnemucca. 
Ohartz,  Alfred  Jean,  Garson  Oity. 
Oheney,  E.  W.,  Rena 
Coleman,  BenJ.  W.,  Carson  City. 
Cooke,  H.  R.,  Reno. 
Dixon,  J.  B.,  Reno. 
Ducker,  Edw.  A.,  Oamn  Clly. 
Edwards,  H.  W.,  Ely. 
Farrington,  E.  S.,  Carson  City. 
Forman,  Wm.,  Tonopsh. 
Gardiner,  W.  M.,  Rena 
Guild,  Clark  J.,  Terington. 
Hawkins,  Prince  A.,  Reno. 
Henderson,  A.  S.,  Las  Vegas. 
Henley,  Benjamin  J.,  Rena 
Howard,  Cole  L.,  Reno. 
Kearney,  William  M.,  Reno. 
Kublinski,  Otto  George,  Reno. 
Lxmsford,  E.  F.,  Rena 
Mashbum,  Arthur  Gray,  Reno 
McCarran,  P.  A.,  Reno. 
McNamara,  J.  M.,  Blka 


Montrose,  Geo.  A.,  Oardnenrille. 
Moran,  Tliomas  F.,  Reno. 
Norcross,  Frank  EL,  Rtno. 
Percy,  Hugh,  Rena 
Pike,  Le  Ray  F.,  Rena 
PouJade,  J.,  Carson  Oity. 
Price,  Robert  M.,  Reno. 
Salisbury,  S.,  Reno. 
Sanders,  J.  A.,  Carson  City. 
Seeds,  William  P.,  Reno. 
Short,  Edward  0.,  Rena 
Stoddard,  Ray  W.,  Rena 
Summerfleld,  Lester  D.,  Reno. 
Taber,  E.  J.  L.,  Elko. 
Talbot,  George  F.,  Elko. 
Warren,  Anna  M.,  Rena 
Williams,  Eugene  L.,  Reno. 
Wilson,  Wayne  T.,  Reno. 
Woodbum,  Wm.,  Rena 
Wright,  Benson,  Carson  City. 

NEW  JERSEY. 

Armstrong,  E.  A.,  Princeton. 
Bamford,  Walter,  Patterson. 
Dumont,  Wayne,  Patterson. 
Richards,  Samuel  H.,  Camden. 
Sackett,  Clarence,  Newark. 
Skinner,  Alfred  F.,  Newark. 
Starr,  Lewis,  Camden. 

NEW  MEXICO. 
Backstrom,  J.  L.,  Santa  Fe. 
Bowman,  Harry  S.,  Santa  Fe. 
Cheetham,  F.  J.,  Taos. 
Edwards,  A.  M.,  Santa  Fe. 

NEWTORK. 

Alexander,  Charles  B.,  New  York  Oity. 
Andrews,  James  D.,  New  York  City. 
Bailly,  Edward  a.  New  York  Oity. 
Beattie,  Chas.  Maitland,  New  York  Oily. 
Bogert,  George  G.,  Ithaca. 
Bond,  George  Hopkins,  Syracuse. 
Boston,  Charles  A.,  New  York  City. 
Burlingham,  Charles  O.,  New  York  Oity. 
Clocke,  T.  Emory,  New  York  City. 
Cohen,  Julius  Henry,  New  York  Oity. 
Davis,  A.  M.,  New  York  Oity. 
Davis,  John  W.,  New  York  dty. 
Gets,  David  B.,  Brooklyn. 
Goldmsn,  Samuel  P.,  New  York  dty. 
GrifRn,  Charles  L.,  New  York  Oity. 
Griffin,  William  H.,  New  York  Oity. 
Groasman,  William,  New  York  City. 
Guernsey,  Nathaniel  T.,  New  York  Oity. 
Guthrie,  William  D.,  New  York  City. 
Hill,  Henry  W.,  BulTala 


MEMBBBS  AND  DXLEGATBS  BB0I8TERSD. 


1»5 


KeU7,  Edward  J.,  New  York  Oitj. 
'KftlHj,  Howard  J.,  New  York  City. 
Lawyer,  Geoigie»  Albai^. 
Lewie,  Ctaylon  H.,  STTacoae. 
Lyon,  Fiances  D.,  Albany. 
ICcCoiUe,  Walter  L.,  New  York  City. 
O'Qiady*  Jamea  IL  E.,  Rochester. 
Powell,  Henry  If.,  New  York  Oity. 
Ransom,  WOllam  L.,  New  York  Olty. 
Robinson,  Watson  B.,  New  York  Oity. 
Rosenberg,  Ely,  New  York  Oity. 
Schroebel,  Jacob  J.,  New  York  Oity. 
Stewart,  Robert,  New  York  City. 
Stier,  Joseph  F.,  New  York  Oity. 
Tuft,  Henry  W.,  New  York  Oity. 
Tarbell,  Geo.  S.,  Ithaca. 
Terry,  Charles  Thaddeua,  New  York  Oity. 
Wadhama,  Fred  E.,  Albany. 
Whitman,  Oharles  S.,  New  York  Oity- 
Wickeiaham,  George  W.,  New  York  Oity. 
Woloott,  Frank  T.,  New  York. 

NORTH  CAROUNA. 

Alexander,  Hiss  Julia  If.,  Charlotte. 
King,  R.  R.,  Jr.,  Greensboro. 
Person,  W.  M.,  Louisbnrg. 
Smith,  R.  L.,  Albemarle. 
Thompson,  Frank,  Jacksonville. 

NORTH  DAKOTA. 

Bangs,  Geo.  A.,  Grand  Forks. 
Bangs,  Tracy  R.,  Grand  Forks. 
Boehm,  Paul  W.,  Hettinger. 
Bronson,  Harrison  A.,  Bismark. 
Combs,  Lee,  YaBey  City. 
Ellsworth,  8.  E.,  Jamestown. 

OHIO. 

Aloom,  Albert  D.,  Cincinnati. 

Allread,  James  I.,  Oolumbus. 

Ambler,  Ralph  8.,  Canton. 

Bennett,  Smith  W.,  Columbus. 

Bmml,  Fred  E.,  Cleveland. 

Clevenger,  F.  K.,  Wilmington. 

Oonroy,  8.  8.,  Youngstown. 

Craig,  G.  Ray,  Norwalk. 

Ounen,  R.  G.»  Cleveland. 

Druffel,  John  H.,  Cincinnati. 

Dunlap,  Thomas  8.,  Cleveland. 

Ford,  John  W.,  Youngstown. 

Garfield,  John  M.,  Cleveland. 

Garry,  Tbonaa  H.,  Cleveland. 

Goodman,  Max  P..  Cleveland. 

Graves,  William  0.,  Cleveland. 

Hartley,  U.  J.,  Xenia. 

Hoke,  dem  T.,  Van  Wert. 

Howland,  Paul,  Cleveland.  m 


Ifackensie,  Ralph  P.,  Lima. 
Man,  Judge  Robert  8.,  Cincinnati. 
Miller,  Harry  W.,  Portsmouth. 
Murphy,  Clarence,  Hamilton. 
Oakes,  A.  B.,  Cleveland. 
Peacock,  George  C,  Cincinnati. 
Pogue,  Province  M.,  Cincinnati. 
Pomerene,  W.  R.,  Columbus. 
Powell,  Albert  E.,  Cleveland. 
Runkle,  Harry  M.,  Columbus. 
Scott,  Frank  C,  Cleveland. 
Thomas,  J.  R.,  Cleveland. 
Throckmorton,  A.  H.,  Cleveland. 
Vickeiy,  Willis,  Cleveland. 
Whitacre,  J.  J.,  Canton. 

OKLAHOMA. 

Ames,  C  B.,  Oklahoma  City. 
Cheadle,  John  B.,  Norman. 
Duncan,  H.  R.,  Pawhuska. 
Hagan,  Horace  H.,  Tulsa. 
Henry,  H.  D.,  Mangum. 
Kulp,  Victor  H.,  Norman. 
Slou^  B.  B.,  Ardmore. 
Spielman,  Jacob  R.,  Oklahoma  City. 
Wells,  Frank,  Oklahoma  City. 

m 

OREGON. 

Allen,  Harrison,  Portland. 
Aaher,  Abraham,  Portland. 
Back,  Sdd  J.,  Portland. 
Bernstein,  Alexander,  Portland. 
Bischoff,  8.  J.,  Portland. 
Botts,  H.  T.,  Tillamook. 
Briggfl,  Wm.  M.,  Ashland. 
Butt,  Clarence^  Newberg. 
Carey,  Charles  Henry,  Portland. 
Cochran,  Charles  E.,  Portland. 
Coshow,  0.  P.,  Roseburg. 
Duncan,  W.  M.,  Klamath  Falls. 
Emmons,  Arthur  C,  Portland. 
Finn,  C.  H.,  La  Grande. 
Fitsgerald,  J.  J.,  Portland. 
Gearin,  John  M.,  Portland. 
Hale,  William  G.,  Eugene. 
Immel,  E.  0.,  Eugene. 
Kerr,  James  B.,  Portland. 
Laing,  John  A.,  Portland. 
Lent,  George  P.,  Portland. 
McCourt,  John,  Portland. 
McOue,  John  C,  Portland. 
Miller,  Justin,  Eugene. 
Montague,  Richard  W.,  Portland. 
Montgomery,  Hugh,  Portland. 
Moser,  Gus  C,  Portland. 
Pipes,  Martin  L.,  Portland. 
Rand,  John  L.,  Portland. 


126 


AHERIOAN  BAB  ASSOOUTION. 


Ridgway,  Albtft  B.,  PoitUnd. 
Swagler,  Ralph  W.,  Ontario. 
Teal,  Joseph  N.,  Portland. 
Tucker,  Robert,  Portland. 

PENNSTLYANIA. 

Berkey,  John  Albert,  Somerset. 
Bomeman,  Henry  S.,  Philadelphia. 
Breeden,  Waldo  Preston,  Pittsburgh. 
Crawford,  Winfield  W.,  Philadelphia. 
Hannum,  Howard  E.,  Chester. 
Hannum,  John  B.,  Jr.,  Chester. 
Hargest,  William  M.,  Harrisburg. 
Hart,  Geo.,  Philadelphia. 
Hazzard,  Yemon,  Monongahela. 
Henderson,  Joseph  W.,  Philadelphia. 
Holding,  A.  M.,  West  Chester. 
Merchant,  Edward,  Philadelphia. 
Moorhead,  F.  O.,  Beaver. 
Patterson,  Marion  D.,  HoUidaysburg. 
Rawle,  Francis,  Philadelphia. 
Roberts,  C.  Wilson,  Philadelphia. 
Shick,  Robert  P.,  Philadelphia. 
Smith,  Walter  George,  Philadelphia. 
Sorber,  Samuel  R.,  Oreensburg. 
Stem,  A.  C,  Pittsburgh. 
Whithead,  H.  W.,  WiUiamsport 
Wright,  J.  MerriU,  Pittsburgh. 

PORTO   RICO. 
Wolf,  Adolph  G.,  San  Juan. 

RHODE  ISLAND. 
Jenckes,  Thomas  A.,  Proridence. 

SOUTH  CAROLINA. 

Earle,  Wilton  H.,  Greenville. 
Oibbes,  Hunter  A..  Columbia. 
Gylea^  Herbert  E.,  Aiken. 
Huger,  Alfred,  Charleston. 
Hyde,  Simeon,  Charleston. 
Lumpkin,  Alva  M.,  Columbia. 
Otts,  Cornelius,  Spartansburg. 
Thomas,  John  P.,  Jr.,  Columbia. 
Wolfe,  Sam  M.,  Columbia. 

SOUTH  DAKOTA. 

Cherry,  U.  S.  O.,  Sioux  Falls. 
Patterson,  E.  0.,  Dallas. 
Patterson,  Mrs.  E.  0.,  Dallas. 
Telgen,  Tore,  Sioux  Falls. 
Voorhees,  John  H.,  Sioux  Falls. 

TENNESSEE. 

Armstrong,  Walter  P.,  Memphis. 
Jackson,  R.  F.,  Nashville. 


Miles,  Lovick  P.,  Memphis. 
Newman,  Clair«  B.,  Jackson. 
Owen,  William  A.,  Covington. 
Swaney,  W.  B.,  Chattanooga. 
Trimble,  James  M.,  Chattanooga. 
Turner,  Judge  W.  B.,  Columbia. 
Washington,  W.  H.,  Nashville. 
Young,  J.  P.,  Memphia. 

TEXAS. 

Bonner,  Wm.  N.,  Wichita  Falls. 
Britain,  A.  H.,  Wichita  Falls. 
Bromberg,  Henri  Louie,  Dallas. 
Brown,  Yolney  M..  El  Paso. 
Burford,  Jos.  M.,  Mount  Pleasant. 
Burges,  William  H.,  El  Paso. 
Carrigan,  A.  H.,  Wichita  Falls. 
Cooke,  Clay,  Fort  Worth. 
Crook,  W.  M.,  Beaumont. 
Croom,  a  W.,  El  Paso. 
Frank,  D.  A.,  Dallas. 
Franklin,  Thos.  H.,  San  Antonio. 
Graves,  Ireland,  Austin. 
Lawther,  Harry  P.,  Dallas. 
Mays,  Richard,  Corslcana. 
Newman,  F.  M.,  Brady. 
Saner,  Robert  E.  L.,  Dallas. 
Shurter,  E.  D.,  Austin. 
Smith,  W.  D.,  Fort  Worth. 
Smith,  W.  R.,  El  Pasow 
Street,  Robert  G.,  Galveston. 
Stuart,  R.  T.,  Dallas. 
Todd,  Chas.  S.,  Texarkana. 
Werlein,  Ewing,  Houston. 
Wright,  W.  A,  San  Angela 

UTAH. 

Bagley,  Emmett,  M.,  Salt  Lake  City. 
CheK,  Joseph,  Ogden. 
Cluif,  Harvey  H.,  Salt  Lake  City. 
DeYine,  J.  H.,  Ogden. 
Evans,  Jos.  B.,  Ogden. 
Hollingsworth,  Chas.  R.,  Ogden. 
Jenson,  David,  Ogden. 
Kimball,  James  N.,  Ogden. 
Lee,  E.  0.,  Salt  Lake  City. 
MacLane,  John  F.,  Salt  Lake  City. 
Nibley,  Joel,  Salt  Lake  City. 
Porter,  Robt.  B.,  Salt  Lake  City. 
Richards,  Frank  S.,  Salt  Lake  City. 
Richards,  Franklin  S.,  Salt  Lake  City. 
Richards,  Stephen  L.,  Salt  Lake  City. 
Rydalch,  William  E.,  Salt  Lake  City. 
Schulder,  Russell  O.,  Salt  Lake  City. 
Shields,  Dan  B.,  Salt  Lake  Oity. 
Smith,  Geo.  H.,  Salt  Lake  City, 
surfer,  W.  I.,  Salt  Lake  Oity. 


MEMBERS  AND  DELEGATES  BEGISTERED. 


127 


Stephena,  Huold  M.,  Salt  Lake  Oitj, 
Wolfe,  Jamea  H.,  Salt  Lake  Oity. 

TERMONT. 

Hogan,  Geo.  M.,  St.  Albans. 
Button,  Oharlea  I.,  Middlebuiy. 
Powers  George  11.,  MonrlsTllle. 
Tonng,  Geo.   B.,  Montpelier. 

VIRGINIA. 

Beaman,  Robert  P.,  Norfolk. 
Blair,  D.  M.,  Rldunond. 
Bowe,  Stuart,  Rldunond. 
Oaton,  Jamea  R.,  Alexandria. 
Chichester,  O.  M.,  Richmond. 
Groner,  D.  Lawrence,  Norfolk. 
Lea,  John  P.,  Richmond. 
Hassle,  Eugene  0.,  Ridunood. 
Peyton,  Robert  E.,  Jr.,  Richmond. 
Prsntfa,  Robert  R.,  Suffolk. 
Rawley,  J.  Kent,  Richmond. 
Shelton,  Thomas  W.,  Norfolk. 
Williams,  E.  Randolph,  Richmond. 
Wllliama,  Z.  Randolph,  Richmond. 

WASHINGTON. 

Bates,  Charles  O.,  Taooma. 
Heeler,  Adam,  Seattle. 
Bogle,  Lawrence,  Seattle. 
Bridges,  J.  B.,  Olympia. 
Bruener,  Theodore  B.,  Aberdeen. 
Ohadwick,  S.  J.,  Seattte. 
Coleman,  J.  A.,  Everett 
Davis,  Arthur  W.,  Spokane. 
Delle,  Lee  O.,  Takima. 
Dore,  John  F.,  Seattle.' 
Douglaa,  Ma1<M>lm,  Seattle. 
Gordon,  J.  H.,  Taeema. 
Oose,  M.  F.,  Oljmpia. 
Grady,  Thomas  E.,  Takima. 
Haight,  James  A.,  Seattle. 
Hamblen,  L.  R.,  Spokane. 
Herald,  Emcat  B.,  Seattle. 
Herr,  WiUis  B.,  SeatUe. 
Kiier,  B.  H.,  Spokane. 
Levine,  Benjamin  M.,  Seattle. 


Lindsley,  Joseph  B.,  Spokane^ 
McLaren,  W.  G.,  Seattle. 
McWilliams,  H.  L.  M.,  Spokane. 
Hetsenbaum,  Walter,  Seattle. 
Ifonten,  William  A.,  Spokane. 
Muzphy,  John  F.,  Seattle. 
Nuzum,  Richard  W.,  Spokane. 
Peterson,  Charles  T.,  Tacoma. 
Post,  Frank  T.,  Spokane. 
Pummens,  George  H.,  Seattle. 
Remington,  Arthur,  Tacoma. 
Ridiards,  N.  C,  Takima. 
Rowland,  Diz  H.,  Taooma. 
Rupp,  Otto  B.,  Seattle. 
Shepard,  Charles  B.,  Seattle. 
Spirk,  Charlce  A.,  Seattle. 
SuUiTan,  John  J.,  Seattle. 
Thompson,  L.  L.,  Olympia. 
Thorgrlmson,  0.  B.,  Seattle. 
Tolman,  Warren  W.,  Olympia. 
Tyler,  Albert  W.,  Olympia. 

WEST  VIRGINIA. 

Lynch,  Charles  W.,  Clarluburg. 
Madden,  Joseph  Warren,  Morgantown. 
Prerton,  John  J.  D.,  Charleston. 
Smith,  Harvey  F.,  Clarksburg- 
Yandervort,  James  W.,  Parkersburg. 

WISCONSIN. 

Frame,  H.  J.,  Waukesha. 
Hudnall,   George   B.,   Milwaukee. 
Lecher,  Louis  A.,  Milwaukee. 
McConnell,  John  E.,  La  Crosse. 
Owen,  W.  0.«  Madison. 
Sanborn,  John  B.,  Madison. 
Shea,  William  F.,  Ashland. 
Schoets,  Max,  Jr.,  Milwaukee. 
Thompson,  William  D.,  Racine. 

WYOMING. 

Corthell,  N.  E.,  Laramie. 
Kinkead,  W.  C,  Cheyenne. 
Matson,  Roderldc  N.,  Chsyenne. 

Total  number  registered,  1447. 


ANNUAL  DINNER 

The  annual  dinner  was  held  on  Friday  evening,  August  11, 
1922,  at  the  Palace  Hotel,  San  Francisco,  California.    President 
Cordenio  A.  Severance  presided. 
The  speakers  were : 
Beverly  L.  Hodghead,  of  San  Francisco. 
Et.  Hon.  Lord  Shaw,  of  Dunfermline. 
M,  Henry  Aubepin,  of  Paris. 
John  B.  M.  Baxter,  K.  C.  M.  P.,  of  St.  John,  N.  B. 
John  W.  Davis,  of  N"ew  York. 
Senator  Cornelius  Cole,  of  Los  Angeles. 
The  Chief  Justice  of  the  United  States. 
There  were  1030, members  and  guests  in  attendance  at  the 
dinner. 


(128) 


LIST  OF  PRESIDENTS 

1.  1878-70-* Jamis  O.  Bboadhkad  ^ St.  Louis,  MiflBoun. 

2.  1879-80-*Bbnjamik  H.  Bbistow New  York,  New  Yoik. 

3.  188Q-^1-*£dward  J.  Philpb Burlington,  Vermont. 

4.  1881-82-*Clark80N  N.  Pottsb  ' New  York,  New  York. 

5.  1882-^83-* Albxandbb  R.  Lawton Savannah.  Georgia. 

6.  1883-^4-*Ck)BTLAN]yT  Pabxsb Newark,  New  Jersey. 

7.  1884-85-* John  W.  Stivbnson Covington,  Kentucky. 

8.  1885-86-*WiLLiAM  Alubn  Butlib New  York,  New  York. 

0.  1886-87-*Thoma8  J.  Sbmmbs New  Orleans,  Louisiana. 

10.  1887-^88-*Gk>bgb  G.  Wbiqht Des  Moines,  Iowa. 

11.  188S-80-*David  DuDunr  Fikld New  York.  New  York. 

12.  1880-00-*HxNBT  HiTCHOOCK St.  Louis,  Missouri. 

13.  1800-01-  SiMsoN  £.  Baldwin New  Havexi.  Connecticut. 

14.  1801-02-*JoHN  F.  Dillon New  York,  New  York. 

15.  1802-03-* John  Randolph  Tucxeb Lexington,  Vir^nia. 

16.  180^04-*TBOMAa  M.  Coolbt' Ann  Arbor,  Michigan. 

17.  1804-05-*Jami8  C.  Cartib New  York.  New  York. 

18.  1805-06-  MooBnBU)  Stobet Boston,  Masmchusetts. 

10.  1806-07-*Jamb8  M.  Woolwobth Omaha,  Nebraska. 

20.  1807-08-*Willum  Wirt  Bows New  Orleans.  Louisiana. 

21.  1808-00-* JosiPH  H.  Choatb  * New  York,  New  York, 

22.  1800-1000-*Chablb8  F.  Mandbbson Omaha,  Nebraska. 

23.  1000-1001-*Edmund  Wbtmobb New  York.  New  York. 

24.  1001-1002-*U.  M.  RosB Little  Rock,  Arkansas. 

25.  1002-1003-  FsANas  Rawli Philadelphia,   Pennsylvania. 

26.  1003-1004-* James  Hagbbman St.  Louis,  Missouri. 

27.  1004-1005-  Hbnbt  St.  Gborgb  Tuckeb.  .  Lexington,  Virginia. 

28.  1005-1006-  Gbobgb^  R.  Pbck Chicago,  Illinois. 

20.  1006-1008-  Alton  B.Pabkeb New  Yoric,  New  York. 

30.  1007-1008-  J.  M.  Dickinson Chicago,  Illinois. 

31.  1008-1000-  Fbedebick  W.  Lbhmann.  . . .  St.  Louis,  Missouri. 

32.  1000-1010-*Chablb8  F.  Libbt Portland,  Maine. 

33.  IOIO-IOH-^Edoab  H.  Fabbab New  Orleans,  Louisiana. 

34.  1011-1012-*Stbphbn  S.  Gbbqobt Chicago,  Illinois. 

35.  1012-lOia-  Fbank  B.  Kellogq St.  Paul,  Minnesota. 

36.  1013-1014-  WiujAM  H.  Tatt New  Haven,  Connecticut. 

37.  1014-1015-  Petbb  W.  Meldbim Savannah,  Georgia. 

38.  1015-1016-  Elihu  Root New  York,  New  York. 

30.  1016-1017-  Gbobge  Suthebland Salt  Lake  City,  Utah. 

40.  1017-101&-  Waltbb  Gboroe  Smith Philadelphia,  PennQrlvania. 

41.  1018-1010-  Geobgb  T.  Page Peoria,  Illinois. 

42.  1010-1020-  Hampton  L.  Cabson Philadelphia,   Pennsylvania. 

43.  1020-1021-*WiLUAM  A.  Blount  * Pensacola,  Florida. 

44.  1021-1022-  CoBDBNio  A.  Sbvebange St.  Paul,  Minnesota. 

46.  1022-1023-  John  W.  Davib New  York,  New  York. 

'Deceased. 

*At  the  Oonference  for  organftdng  the  AHodatlon  In  1878*  John  H.  B.  Letrobe,  of 
lUryland,  wu  elected  Temponnr  Gbainoan,  and  when  the  organisation  was  oompleted, 
Benjamin  H.  Bristow.  of  Kentocsy,  was  elected  President  of  the  Conference. 

*  In  oonseqnenoe  of  the  death  of  Olarkson  N.  Potter,  Francis  Keman,  of  New  York, 
presided  and  preiwred  and  delirered  the  President's  Address  in  1882. 

*  In  consequence  of  the  illness  of  Thomas  M.  Cfoolcj,  Samnel  F.  Hnnt,  of  Ohio,  presided 
and  read  the  President's  Address  prepared  hj  Juajge  Ooolqr  in  18M. 

*In  consequence  of  the  absence  of  Joseph  H.  Ohoate,  as  Ambaasador  to  Ortat  Britain, 
Oharles  F.  llandemn,  of  Nebra^,  presided  and  prepared  and  delivered  tlie  President's 
Address  in  18B0. 

*  In  conseqnence  of  the  death  on  June  16,  1021,  of  William  A.  Blonnt  the  Ezecotive 
Committee  elected  the  last  retiring  President,  Hamnton  L.  Carson,  as  Actinic  President 
nntil  the  next  annual  meeting.  James  M.  Beck,  of  New  York,  prepared  snd  read  the 
President's  Address  in  1921. 

(120) 


LIST  OF  SECRETARIES 

1.  187^03-*Edwabd  Otis  Hinxlit  ^ Baltimore,  Maryland. 

2.  1803-190&-  John  Hinklbt  ' Baltimore,  Maiyland. 

3.  190&-1020-*Gbobqb  Whitblock Baltimore,  Maryland. 

4.  102O-  W.  Thomas  Ebmp* Baltimore,  Maryland. 

LIST  OF  ASSISTANT  SECRETARIES 

1.  1909-1910-  Albbbt  C.  RrrcHiB* Bakimc^e,  Maryland. 

2.  1910-1920-  W.  Thomas  Ebmp Baltimore,  Maryland. 

3.  1913-1920-  Gatlobd  Leb  Clark Baltimore,  Maryland. 

LIST  OF  TREASURERS 

1.  1878-1902-  FbANCiB  Rawlk Philadelphia,  Pennsylvania. 

2.  1902-  Fbbdbsick  E.  Wadhams Albany,  New  York. 


• 


Deceued. 


^  In  X878,  Francii  IUwl«,  of  Pennqylyania,  and  Imac  OnuBt  Tliompion,  of  New  York, 
acted  aa  temporarT  8«cretariei  and  aa  Secretaries  of  the  Oonference. 

In  1880,  Edward  Otia  Hinklej  being  abeent,  Walter  Qeorse  Smitli,  off  PennorlranJa. 
acted  aa  SeoreCaiy  pro  tampon. 

>Ib  1808»  John  HinUej  bdnf  abaent,  George  P.  Wanty,  of  Michigan,  acted  mm 
Secretary  pro  tempore. 

*  In  Januaij,  IKO,  George  Whitelock  haying  died,  the  Executive  Oemmittee  appointed 
W.  ThoBM  Senp  to  fill  the  vacancy  until  the  Annual  Meeting  when  the  AModation 
elected  Mm  Secretary. 

^  In  1909  by  Tirtue  of  amendment  to  Oonetitution,  the  Ezecatiye  Oommittct  elected  an 
Afllrtant  Secretary. 


(ISO) 


LIST  OF  EXECUTIVE  COMMITTEE 

1.  1878-87-*LuKB  P.  Poland 8t.  JohDrf>uiy,  Vermont. 

2.  1879-^8-  SiMioN  £.  Baldwin^ New  Haven.  Connecticut 

3.  1878-Sa-*WiLLiAM  A.  FiaHBB Baltimore,  Maryland. 

4.  1880^85-*WiLLiAM  Allbn  BxjTLEa New  York.  New  York. 

6.  188&-90-*Chablb8  C.  Bonnet  ' Chicago,  iJlinoia. 

6.  1887-96-*G«OBaB  A.  Mbbgbr Savannah,  Geoi^a. 

7.  188S-Q0-*JoHN  Randolph  Tugkd Lexington,  Virginia. 

8.  1800-01-*WiLLLiM  P.  Wills Detrmt,  Michigan. 

9.  1890-0^  Altobd  Himbnwat Boston,  Maancnusetts. 

10.  1891-05-*Bbadlbt  G.  Sghlbt Milwaukee.  Wisconsin. 

11.  1805-09-  Chablbb  Claflin  Allbn St.  Louis,  AiisBOuri. 

12.  189fr-07-*WiLLUM  WiBT  HowB New  Orleans,  Louisiana. 

13.  1897-     "  -    -        —  - 

14.  1809- 

15.  1899- 

16.  1899- 

17.  1809- 

18.  1900- 

19.  1900- 

20.  1901- 

21.  1902- 

22.  1902- 

23.  1903- 

24.  1903- 

25.  1903- 

26.  1905- 

27.  1905- 

28.  190&- 

29.  1906- 

30.  1906- 

31.  1908- 

32.  1908- 

33.  1909- 

34.  1909- 

35.  1909- 

36.  1911- 

37.  1911- 

38.  1912- 

39.  1912- 

40.  1912- 

41.  1913- 

42.  19ia- 

43.  1914- 

44.  1914- 

45.  1914- 

46.  191&- 


900-  Chablbb  Noblb  Gbbgobt.  . . .  Washington.  D.  C. 

900-*Edmund  Wbtmobb New  Yoik.  Kew  York. 

901-*U.  M.  RoBB Little  Rock,  Arkansas. 

902-  WnjJAM  A.  Kbtchai£ IncHanapolis,  Indiana. 

902-  Hbnbt  Br,  Gbobob  Tuckbb.  .  Lexington,  Virginia. 

903-  Rqdnbt  a.  Mbbcub Towanda,  Pennsylvania. 

903-*Chablb8  F.  Libbt Portland,  Maine. 

903-*Jambs  Haobbman St.  Louis,  Missouri. 

905-  P.  W.  Mbldbim Savannah,  Qeoivia. 

905-  Plait  Rogbbb Denver,  Coloradfo. 

906-  M.  F.  Dickinson Boston.  Masmchusetts. 

906-  Thbodobb  S.  Gabnbtt Norfolk,  Virnnia. 

906-  WiLLUM  P.  Bbebn Fort  Wayne,  Indiana. 

908-  Chablbb  Monbob Los  Angeles,  California. 

908-*Ralph  W.  BBBCXBNBiDaB. . . .  Omaha,  Nebraska. 
909-*Chablbs  F.  Libbt Portland,  Maine. 

909-  Waltbb  Gbobob  Smith Philadelphia,   Pennaylvania 

909-  RoMB  G.  Bbown Minneapolis,  Minnesota. 

911-  William  O.  Habt New  Orleans,  Louisiana. 

911-  Chablbs  Hbnbt  Butlib New  York,  New  York. 

912-  John  Hinklbt Baltimore,  Morvland. 

912-*Ralph  W.  BsBCKBNBiDaB. . . .  Omaha,  IS(ebrR«ka. 
912-  Ltnn  Hblm Los  Angeles,  California. 

914-  HoLLis  R.  Bailet Boston,  MasBacllusetts. 

914-* Alois  B.  Bbowitb Washington,  D.  C. 

916-  William  H.  Bubgbs El  Paso,  Texas. 

915-  John  H.  Voobhbbs Sioux  Falls,  South  Dakota. 

916-  William  H.  Staazs Philadelphia,  Pennsylvania. 

,914-*Albbbt  W.  Biogs  ' Memphis,  Tennessee. 

916-* William  C.  Niblack Chicago,  Illinois. 

917-  Sbldbn  p.  Spbncbb St.  Louis,  Missouri. 

917-  William  P.  Btnum Greensboro,  North  Carolina. 

917-  Chapin  Bbown Washington,  D.  C. 

918-  Chabubs  N.  Potteb Cheyenne,  Wyoming. 


*  In  1888,  at  the  flnt  meetiiur  of  the  EzaeatiTe  Oommittee  after  the  a^Joummeiit  of  the 
AModatioo,  Slmeoii  E.  Bald^dn  reigned,  and  Oharlea  0.  Boonej  waa  choien  to  lUl  the 
Taeancj  under  Qr-Law  X. 

^  In  leiS,  by  virtue  of  amendment  to  Oonatltutlon,  the  nmnber  of  eleetiTe  mcBBbeia  of 
Bzecotive  Oommittee  waa  Increaaed  from  fire  to  eeren. 

(131) 


132  AMERIOAN  BAB  ASSOCIATION. 

47.  1915-191&-  John  Lowbll Boston,  MaaBachusetts. 

48.  1915-1918-  Charles  Blood  Smith Topeka,  Kansas. 

49.  1916-1919-  Ashley  Cockrill  ' Little  Rock,  Arkansas. 

50.  1916-1917-  Waltbr  George  Smith Philadelphia,   Pennsylvania. 

51.  1917-1918-  George  T.  Page Peoria,  Illinois. 

52.  1917-1920-  T.  A.  Hammond Atlanta.  Georjcia. 

53.  1917-1920-  U.  S.  Q.  Cherry Sioux  Falls,  South  Dakota. 

54.  1917-1920-  Charles  Thadoeus  Terry.  . .  New  York,  New  York. 

55.  1917-1920-  RoBEST  E.  L.  Saner* Dallas,  Texas. 

56.  191^1921-  Edmund  F.  Trabue Louisville,  Kentucky. 

57.  1918-1921-  Thomas  H.  Reynolds Kansas  City,  Missouri. 

58.  1918-1921-  George  B.  Young Montpelier,  Vermont. 

59.  1918-1921-  Paul  Howland   Cleveland.  Ohio. 

60.  1919-1922-  Thomas  C.  McClellan Montgomery,  Alabama. 

61.  1920-  Hugh  H.  Brown Tonopah,  Nevada. 

62.  1920-  John  B.  Corliss Detroit,  Michigan. 

63.  1920-  John  T.  Richards Chicago,  Illinois. 

64.  1920-  W.  O.  Hart* New  Orleans,  Louisiana. 

65.  1921-  Thomas  W.  Blackburn Omaha,  Nebraska. 

66.  1921-  Wiluam  Brosmith  Hartford,  Connecticut. 

67.  1921-  S.  E.  Ellsworth Jamestown,  North  Dakota. 

68.  1921-  Thomas  W.  Shblton Norfolk,  Virginia. 

69.  1922-  A.  T.  Stovall Okolona,  Mississippi. 


• 


'Deceased. 

■  In  1916,  by  virtue  of  amendment  to  Constitution,  the  number  of  elective  members  of 
Executive  Oommittee  was  increased  from  seven  to  elftht.  ^      ^ 

«ln  1016,  by  virUe  of  amendment  to  Constitution,  the  Chairman  of  the  Qeneral 
Council  was  made  an  m  officio  member  of  the  Executive  Committee. 


LIST  OF  PLACES'  OF  MEETING  AND  ATTENDANCE 


Meeting.  Year 
1....1878. 

2.... 1879. 
3.. ..1880. 
4.... 1881. 
5.... 1882. 
6.... 1883. 

7. • . ■ lao4. 

8.. ..1885. 

o. . . . looD. 

10.... 1887. 
11. ...1888. 
12.... 1880. 

lu. ... lovU. 

14.... 1891. 
15.... 1892. 
16.. . .1893. 

If....  lolfs. 
lo. ... looD. 

19.... 1896. 
20.. ..1897. 
21.... 1898. 
£i» . . .  lo9<7. 
23. ...1900. 
24.. ..1901. 
25.. ..1902. 
26.... 1903. 

£t  m  ...  IVIn. 

28.... 1905. 

^9. ... IVUO. 
oO. ...  1907. 
31.... 1908. 
«S2. ...  1909. 

33.... 1910. 

34.... 1911. 

'  35.... 1912. 

.  vD. ... 191o. 

37.... 1914. 
38.... 1915. 

39 1916. 

40. ...1917. 
41.... 1918. 
42.... 1919. 
43.... 1920. 
44. ...1921. 
45.... 1922. 


Date. 

.Aug.  21,  22 

.Aug.  20,  21 

.Aug.  18,  19,  20 

.Aug.  17,  18,19 

.Aug.  8,  9, 10,  11 

.Aug.  22,  23,  24 

.Aug.  20,  21,  22 

.Aug.  19,20,21 

.Aug.  18,  19,  20 

.Aug.  17,  18,19 

.Aug.  15,16,17 

.Aug.  28,  29,  30 

.Aug.  20,  21,  22 

Aug.  26,  27,  28 

.Aug.  24,  25,  26 

.Aug.  30,  31,  Sept.  1... 

.Aug.  22,  23,  24 

.Aug.  27,  28,  29,  30 

.Aug.  19,20,21 

.Aug.  26,  26,  27 

.Aug.  17,  18,  19 

.Aug.  28,  29,  30 

.Aug.  29,  30,31 

.Aug.  21,  22,  23 

.Aug.  27,  28,  29 

.Aug.  26,  27,  28 

.Sept.  26,27,28 

.Aug.  23,  24,  25 

.Aug.  29,  30,  31 

.Aug.  26,  27,  28 

.Aug.  25,  26,  27,  28 

.Aug.  24,  25,  26,  27 

.Aug.  30,  31,  Sept.  1... 

.Aug.  29,  30,  31 

.Aug.  27,  28,  29 

.Sept.  1,  2,  3 

.Oct.  20,  21,22 

.Aug.  17,  18,  19 

.Aug.  30,  31,  Sept.  1... 

.Sept.  4,  5  6 

.Aug.  28,  29,  30 

.Sept.  3,  4,  5 

.Aug.  25,  26,  27 

.Auk.  31.  Sept.  1,2 

.Aug.  9,  10,  11 


Place. 


Attendance. 


Saratoga  Springs,  N.  Y 75 

Saratoga  Springs,  N.  Y. . . .  (m  iMwd) 

Saratoga  Springs,  N.  Y 97 

Saratoga  Springs,  N.  Y 124 

Saratoga  Springs,  N.  Y 107 

Saratoga  Springs,  N.  Y 120 

Saratoga  Springs,  K.  Y 108 

Saratoga  Springs,  N.  Y 124 

Saratoga  Springs,  N.  Y 137 

Saratoga  Springs,  K.  Y 149 

Saratoga  Springs,  N.  Y 121 

Chicago,  Dl 158 

Saratoga  Springs,  N.  Y 132 

Boston,  Mass 292 

Saratoga  Sprinfps,  N.  Y 143 

Milwaukee,  Wis 130 

Saratoga  Springs,  N.  Y 140 

Detroit,  Mich 199 

Saratoga  Springs,  N.  Y 276 

Cleveland,  Ohio 184 

Saratoga  Springs,  N.  Y 227 

Buffalo,  N.Y 227 

Saratoga  Springs,  N.  Y 230 

Denver,  Colo 306 

Saratoga  Springs,  N.^Y 230 

Hot  Springs,  Va 250 

St.  Louis,  Mo 451 

Narragansett  Pier,  R.  1 277 

St.  Paul,  Minn 369 

Portland,  Maine  402 

Seattle,  Washington 312 

Detroit,  Michifsan 389 

Chattanooga,  Tennesee 324 

Boston,  Mass 625 

Milwaukee,  Wis 558 

Montreal,  Canada 1023 

Washington,  D.  C 1184 

Salt  Lake  City,  Utah 531 

Chicago,  III 943 

Saratoga  Springs,  N.  Y 598 

Cleveland,  Ohio 604 

Boston,  Mass 871 

St.  Louis,  Mo 727 

Cincinnnti.  Ohio  1206 

San  Francisco,  Cal 1447 


(133) 


CONSTITUTION  AND  BY-LAWS 


CONSTITUTION 
Artiolb  I. 

NAKB  AND  OBJBCT. 

This  Association  shall  be  known  as  ^'Thb  Akericak  Bab 
Association/'  Its  object  shall  be  to  advance  the  science  of 
jurispmdence,  promote  the  administration  of  justice  and  uni- 
formity of  legislation  and  of  judicial  decision  throughout  the 
Nation^  uphold  the  honor  of  the  profession  of  the  law,  and  en- 
courage cordial  intercourse  among  the  members  of  the  Americar 
Bar. 

Abholb  II. 

*      QUALIFI0ATI0N8  FOB  KBKBBB8HIP. 

Any  person,  on  nomination  in  accordance  with  the  proyisions 
of  Article  III,  shall  be  eligible  to  membership  in  this  Associa- 
tion who  shall  be,  and  shall  have  been  for  three  years  next 
preceding  nomination,  a  member  in  good  standing  of  the  Bar 
of  any  state. 

Abticlb  III. 

BLBOTION  OF  KBHBBBB. 

(a)  Nominations  for  membership  shall  be  made  by  a  majority 
of  the  Local  Council  of  the  state  to  the  Bar  of  which  the  persons 
nominated  belong,  and  must  be  transmitted  in  writing  to  the 
Chairman  of  the  General  Council,  and  approved  by  the  Council 
on  vote  by  ballot,  except  as  provided  in  sub-division  (d)  hereof. 

(b)  The  General  Council  may  also  nominate  members  from 
states  having  no  Local  Council,  and  at  the  annual  meeting  of  the 
Association  may  nominate  members  from  any  state  of  which 

*  Adopted  September  5,  1919. 

(134) 


00N8TIXUTI0N.  186 

a  majority  of  the  members  of  the  Local  Coimdl  are  not  then 
in  attendance;  but  no  such  nomination  shall  be  made  or  con- 
sidered by  the  General  Council,  unless  supported  by  a  statement 
in  writing  of  at  least  three  members  of  the  Association  from 
the  same  state  with  the  person  nominated,  or  in  the  absence 
of  three  such  members,  then  by  three  members  from  a  neigh- 
boring state  or  states,  to  the  efEeet  that  the  person  nominated 
has  the  qualifications  required  by  the  Constitotion  and  desires 
to  become  a  member  of  the  Association,  and  that  his  admission 
as  a  member  is  recommended  by  the  signers  of  the  statement. 

(c)  All  nominations  thus  msde  shall  be  reported  by  the  Coun- 
cil to  the  Association  for  its  action.  The  vote  shall  be  taken 
viva  voce,  unless  any  member  demand  a  vote  by  ballot  upon  any 
name  thus  reported,  in  which  case  the  Association  shaU  yote 
thereon  by  ballot.    Five  negatiye  Yotes  shall  prevent  an  election. 

(d)  During  the  period  between  annual  meetings,  members 
may  be  elected  by  the  Executive  Committee  upon  the  written 
nomination  of  a  majority  of  the  Local  Council  of  any  state. 
One  negative  vote  in  the  Executive  Committee  shall  prevent  an 
election. 

(e)  Persons  of  distinction  who  are  members  of  the  Bar  of 
another  country  but  not  members  of  the  Bar  of  any  state 
of  the  United  States,  may,  without  formal  nomination  or  cer- 
tification, be  elected  by  the  Executive  Committee  to  be  honorary 
members  of  the  Association.  Honorary  members  shall  be  entitled 
to  the  privileges  of  the  fioor  during  meetings,  but  shall  not  be 
entitled  to  vote,  and  they  shall  pay  no  dues. 

AanoLB  rv. 

OPFIOflBS,  OOMlOmDn  AKD  810TI0NB. 

The  following  ofiicers  shall  be  elected  at  each  annual  meet- 
ing for  the  year  ensuing: 

A  President; 

A  Vice-President  from  each  state; 
A  Secretary; 
A  Treasurer; 

A  General  Council,  consisting  of  one  member  from  each 
state. 


136  AMERICAN   BAB  ASSOCIATION. 

The  same  person  shall  not  be  elected  President  in  two  sucoeG- 
sive  years. 

The  General  Council  shall  be  a  Committee  on  Nominations 
for  office  and  shall  elect  its  Chairman  annoallyy  but  ths 
same  person  shall  not  be  elected  Chairman  more  than 
three  successive  years. 

There  shall  be  an  Executive  Committee^  which  shall  con- 
sist of  the  President^  the  last  retiring  President,  the  Chairman  of 
the  General  Council^  the  Secretary  and  the  Treasurer,  all  of 
whom  shall  be  members  ez-officio,  together  with  eight  other 
members  to  be  elected  by  the  Association  upon  nomination  by 
the  General  Council,  but  no  member  shall  be  elected  more  than 
three  years  in  succession.  The  President,  and  in  his  absence  the 
former  President,  shall  be  Chairman  of  the  committee. 

The  Executive  Committee  shall  have  full  power  and  authority, 
in  the  interval  between  meetings  of  the  Association,  to  do  all 
acts  and  perform  all  functions  which  the  Association  itself  might 
do  or  perform,  except  that  it  shall  have  no  power  to  amend  the 
Constitution  or  By-Laws. 

There  shall  be  one  or  more  Assistant  Secretaries,  who  shall  be 
elected  by  the  Executive  Committee,  and  shall  hold  office  at  the 
pleasure  of  that  committee. 

The  following  committees  shall  be  appointed  annually  by  the 
President  for  the  year  ensuing,  each  to  consist  of  five  members, 
unless  otherwise  specifically  indicated  herein  : 

On  Commerce,  Trade  and  Commercial  Law ; 

On  International  Law; 

On  Insurance  Law; 

On  Jurisprudence  and  Law  Beform,  to  consist  of  15  members ; 

On  Professional  Ethics  and  Grievances; 

On  Admiralty  and  Maritime  Law ; 

On  Publicity; 

On  Publications ; 

On  Noteworthy  Changes  in  Statute  Law ; 

On  Legal  Aid  Work ; 

On  Membership,  to  consist  of  such  number  as  the  President 
may  appoint;  and 

On  Memorials,  of  which  the  Secretary  shall  be  the  Chairman. 


CONSTITUTION.  1S7 

The  Chairman  of  each  Section  of  the  Association,  and  the  Presi- 
dent of  the  National  Conference  of  Commissioners  on  Uniform 
State  Laws,  shall  each  be  deemed  a  committee  of  one,  and  each 
shall  report  the  work  of  his  Section  or  Conference  and  present  its 
recommendations  for  action  by  the  Association. 

A  majority  of  the  meimbers  of  any  committee,  including  the 
General  Council,  present  at  any  meeting  shall  constitute  a 
quorum. 

The  Vice-President  for  each  state  and  four  other  members 
from  such  state  to  be  annually  elected,  shall  constitute  a  Local 
Council  for  such  state.  The  Vice-President  shall  be  ez-olBScio 
Chairman  thereof.  It  shall  be  the  duty  of  the  Vice-President 
from  each  state  to  report  the  deaths  of  members  within  the 
same  to  the  Committee  on  Memorials. 

The  members  of  the  General  Council  and  the  members  of  the 
Local  Council  in  each  state  shall  constitute  a  committee  for  their 
state  to  further  the  interests  and  opinions  of  the  American  Bar 
Association  in  such  manner  and  in  such  ways  as  shall  be  sug- 
gested by  the  Executive  Committee. 

There  shall  be  the  following  Sections  of  the  Association : 

Section  of  Legal  Education  and  Admissions  to  the  Bar ; 

Section  of  Patent,  Trade-Mark  and  Copyright  Law ; 

Judicial  Section ; 

Comparative  Law  Bureau ; 

Section  of  Public  Utility  Law ; 

Section  of  Criminal  Law  and  Criminology ; 

Conference  of  Bar  Association  Delegates;  and  such  other 
Sections  as  may  from  time  to  time  be  authorized  by  the  Associa- 
tion upon  the  recommendation  of  the  Executive  Committee 
thereof. 

Each  Section  shall  have  a  Chairman,  Vice-Chairman,  Secre- 
tary, Treasurer,  and  a  Council  which  shall  consist  of  eight  mem- 
bers elected  by  the  Section.  Each  Section  shall  have  power  to 
adopt  By-Laws  for  the  regulation  of  its  functions,  not  inconsis- 
tent with  the  Constitution  and  By-Laws  of  the  Association, 
and  subject  to  the  approval  of  the  Executive  Committee  of 
the  Association.  The  Council  of  each  Section  shall  be  known 
and  designated  as  '^  The  Council  of  the  American  Bar  Associa- 
tion'' on  the  particular  subject  which  characterizes  the  work  of 


138  AMERICAN  BAB  A8SO0UTION. 

tile  Seotion^  as,  for  example^  the  Council  of  the  Section  of  Legal 
Education  and  Admissions  to  the  Bar  shall  be  known  as  '^  The 
Council  of  the  American  Bar  Association  on  Legal  Education  and 
Admissions  to  the  Bar.*'  Qualifications  for  membership  in  anj 
Section  may  be  determined  by  the  Section  itself  and  shall  be 
defined  in  its  own  By-Laws,  provided  that  action  taken  by  a 
Section  must  be  approved  by  the  Association  before  the  same 
shall  become  e£Fective. 

Abtiolb  V. 

BT-LAWS. 

By-laws  may  be  adopted,  amended,  or  rescinded  at  any  meet- 
ing of  the  Association  by  a  vote  of  three-fourths  of  the  mem- 
bers present  at  any  session  of  such  annual  meeting,  provided 
there  be  not  less  than  two  hundred  members  present  at  such 
annual  meeting,  and  provided  further  that  notice  shall  have  been 
given  by  the  Secretary  to  the  members  of  the  Association  either 
by  mail  or  by  publication  in  the  Journal  at  least  thirty  Aays 
before  the  meeting  at  which  action  is  taken. 

Artiolb  YI. 

DUBS. 

Bach  member  shall  pay  $6.00  to  the  Treasurer  annually,  which 
sum  shall  include  dues  and  the  cost  of  subscription  to  the 
Ambbioan  Bar  Assooiation  Journal,  which  to  members  is 
$1.60  per  year.  All  other  publications  of  the  Association  shall 
be  free  of  charge  to  the  members.  No  person  shall  be  in  good 
standing  or  qualified  to  exercise  any  privilege  of  membership 
who  is  in  default.  The  Executive  Committee,  in  its  discretion, 
may  remit  the  dues  of  any  member  under  special  circumstances. 

Artiolb  VII. 

PBBSIDENT'S  ADDBB88. 

At  each  annual  meeting  of  the  Association,  the  President 
shall  deliver  an  address  upon  such  topics  as  he  may  select  with 
the  approval  of  the  Executive  Committee. 


OONSTITUTION.  139 

Abticlb  VIII, 

ANNUAL  KKBTING8. 

The  Association  shall  meet  annually  at  such  time  and  place 
as  the  Executive  Committee  may  select^  and  those  present  at 
any  session  of  any  meeting  shall  constitute  a  quorum,  except  as 
proYided  in  Articles  Y  and  X. 

The  American  flag  shall  be  displayed  at  all  meetings  of  the 

Arxiolb  IX. 

RBFSBSNDUX. 

The  Executive  Committee  may  submit  from  time  to  time  by 
referendum  to  the  individual  members  of  the  Association  ques- 
tions affecting  fhe  substance  or  the  administration  of  the  law 
which  in  the  opinion  of  the  Committee  are  of  immediate  practical 
importance  to  the  whole  country. 

AxnoLB  X. 

A1CSNDHBNT8. 

This  Constitation  may  be  altered  or  amended  only  by  a  vote 
of  three-fourths  of  the  members  present  at  any  session  of  an 
annual  meeting,  but  no  such  change,  shall  be  made  unless  at  least 
two  hundred  members  shall  be  present,  nor  unless  notice  of  the 
proposed  alteration  or  amendment  shall  have  been  given  by  the 
Secretary  to  the  members  of  the  Association  either  by  mail  or 
by  publication  in  the  JoubnaIj  at  least  thirty  days  before  the 
meeting  at  which  the  amendment  is  offered. 

Abtiolb  XI. 

CX>N9TBU0nON. 

The  word  ''  state,''  whenever  used  in  this  Constitution,  shaU 
be  deemed  to  comprise  state,  territory,  the  District  of  Columbia 
or  any  insular  or  other  possession  of  tiie  United  States  and  places 
over  which  the  United  States  exercises  extra-territorial  juris- 

diction. 


BY-LAWS. 

MSBTINQ  OF  THB  A88O0UTI0N. 

I.  The  program  and  order  of  exercises  at  the  annual  meeting 
of  the  Association  shall  be  those  prescribed  by  the  Execative 
Committee  and  notified  to  the  members  at  least  thirty  days  before 
the  meeting. 

BEPOBTB  OP  OOHKITTBES. 

II.  Where  the  report  of  a  committee  has  been  printed^  it  shall 
not  be  read  at  a  meeting  of  the  Association,  but  if  the  report 
recommends  action  by  the  Association,  the  recommendations  shall 
be  set  forth  at  the  beginning  of  the  report,  and  the  chairman  of 
the  committee  may  state  briefly  to  the  meeting  their  substance 
and  the  reasons  for  them. 

HBSOLUTIONS — ^PBOOEDUBB. 

III.  No  person  shall  speak  more  than  ten  minutes  at  a  time 
or  more  than  twice  on  one  subject,  except  as  indicated  on  the 
formal  program  prepared  by  the  Executiye  Committee. 

Eveiy  resolution  shall  be  in  writing  and  unless  of  a  formal 
character  or  presented  by  a  committee,  shall  be  referred  by  the 
Chair  .on  presentation,  without  debate,  to  an  appropriate  com- 
mittee for  consideration  and  report.  No  resolution  which  is 
neither  favorably  reported  by  a  committee  nor  adopted  by  the 
Association,  shall  be  published  in  the  proceedings  of  the  meetings. 

No  legislation  shall  be  reconmiended  or  approved  by  the  Asso- 
ciation unless  there  has  been  a  report  of  a  committee  thereon, 
and  unless  such  legislation  be  approved  by  a  two-thirds  vote  of 
the  members  of  the  Association  present. 

No  resolution  complimentary  to  an  officer  or  member  for  any 
service  performed,  paper  read  or  address  delivered  shall  be  con- 
sidered by  the  Association. 

N0N-MH1CBIEB8 :    PBIVILBQIBS  OF  FLOOB. 

lY.  Members  of  the  Bar  of  any  foreign  country  or  of  any  state 
who  are  not  members  of  the  Association  may  be  admitted  to  the 
privileges  of  the  floor  at  any  meeting  of  the  Association. 

(140) 


BY-LAWB.  141 

BOOKS  AMD  PAPXBfl  OP  THB  A8800IATI0H. 

V.  All  papers,  addresses  and  reports  read  before  the  Associa- 
tion or  submitted  to  it,  shall  be  lodged  with  the  Secretary  and 
become  the  property  of  the  Association,  and  shall  not  be  published 
unless  by  the  express  direction  of  the  Executiye  Committee. 
Gonmiittee  reports  which  have  been  printed  in  full  in  the 
Journal  shall  not  be  printed  again  in  the  annual  volume  of  the 
Association,  but  there  may  be  printed  therein  a  brief  epitome  or 
condensed  summary  of  such  a  report  which  may  be  prepared  by 
the  chairman  of  the  committee  making  the  report. 

Extra  copies,  not  exceeding  one  hundred  in  number,  of  any 
report,  address  or  paiper  read  before  the  Association  may  be 
printed  by  the  direction  of  the  Executive  Committee  for  the  use 
of  the  author. 

The  Executive  Committee  shall  arrange  through  the  Smith- 
sonian Institution,  or  otherwise,  a  system  of  exchanges  by  which 
the  Transactions  can  be  exchanged  annually  for  those  of  Asso* 
oiations  in  foreign  countries  interested  in  jurisprudence  or 
governmental  affairs;  and  the  Secretary  shall  exchange  the 
Transactioas  for  those  of  the  State  and  Local  Bar  Associations. 
All  books  thus  acquired  shall  be  boimd  and,  provided  the  New 
York  City  Bar  Association  consents  thereto,  shall  be  deposited  in 
the  charge  of  that  Association,  subject  to  the  call  of  this  Asso- 
ciation, if  it  ever  desires  to  withdraw  or  consult  them. 

The  Secretary  shall  send  one  copy  of  the  Annual  Report  to  the 
President  of  the  United  States,  to  the  Chief  Justice  of  the 
United  States,  to  each  of  the  Associate  Justices  of  the  Supreme 
Court  of  the  United  States,  to  the  Library  of  the  State  Depart- 
ment, and  of  the  Department  of  Justice  ttiereof,  to  the  Governor, 
to  the  Chief  Judge  or  the  Chief  Justice  of  the  court  of  last 
resort  of  each  state,  to  the  State  Librarian  thereof,  to  all  public 
law  libraries,  to  college  libraries,  to  other  principal  libraries  in 
the  United  States,  and  to  such  other  persons  or  bodies  as  the 
Executive  Committee  may  direct. 

OmOBBS  AND  00KKITTBB8. 

YI.  The  terms  of  ofiSce  of  all  officers  elected  at  any  annual 
meeting  shall  commence  at  the  adjournment  of  such  meeting, 
except  the  members  of  the  General  Council,  whose  term  of  office 


142  AMSRIOAN  BAB  AS800IATI0K. 

shall  commeHce  immedietely  upon  their  election.  Vacancies  in 
any  office,  except  the  Oeneral  Council,  occurriAg  between  the 
annual  meetings  shall  be  filled  by  the  Ezecutiye  Oommittee ;  and 
such  interim  vacancies  in  the  (General  Council  shall  be  filled  by 
the  Local  Coimoil  of  the  state. 

VII.  The  President  shall  appoint  all  committees,  including 
special  committees,  and  shall  announce  the  appointments  to  the 
Secretary,  who  shall  give  notice  to  the  persons  appointed. 

There  shall  be  appointed  annually  by  the  President  a  oom- 
mittee to  be  known  as  the  Beception  Committee,  whose  duty  it 
shall  be  to  attend  immediately  before  and  at  the  opening  of  the 
first  day's  session  of  the  meeting  to  receive  members  and  delegates 
and  introduce  them  to  each  other. 

The  Committee  on  Professional  Ethics  and  Qrieyances  shall: 

(1)  Assist  state  and  local  bar  associations  in  all  matters 
concerning  their  activities  in  respect  to  the  ethics  of  the  pro- 
fession, collect  and  communicate  to  the  Association  information 
concerning  such  activities  and,  from  time  to  time,  make  recom- 
mendations on  the  subject  to  the  Association. 

(2)  Be  authorized,  in  its  discretion,  to  express  its  opinion  con- 
cerning proper  professional  conduct  and  particularly  concerning 
the  application  of  the  Canons  of  Ethics  thereto,  when  consulted 
by  ofiicers  or  committees  of  state  or  local  bar  associations.  Such 
expression  of  opinion  shall  only  be  made  after  a  consideration 
thereof  at  a  meeting  of  the  committee  and  approval  by  at  least 
a  majority  of  the  committee. 

(3)  Be  authorized  to  hear,  in  meeting  of  the  committee,  upon 
its  own  motion,  or  upon  complaint  preferred,  charges  of  pro- 
fessional misconduct  against  any  member  of  this  Association. 
As  a  result  of  such  hearing  it  may  recommend  to  the  Executive 
Committee  the  forfeiture  of  the  right  to  membership  of  any  such 
member.  All  such  recommendations  shall  be  accompanied  by  a 
transcript  of  the  evidence  and  shall  only  be  made  after  the 
accused  member  has  been  given  notice  of  the  nature  of  the  com- 
plaint and  after  a  reasonable  opportunity  has  been  accorded  him 
or  her  to  submit  evidence  and  argument  in  defense. 

(4)  Forfeiture  of  the  membership  of  any  member  as  herein- 
before provided  shall  become  effective  when  approved  by  a 
majority  of  all  of  the  members  of  the  Executive  Committee  and 


BT-LAW8  143 

all  interest  in  the  property  of  the  Aflsocifttion  of  perscms  whose 
manbership  is  so  forfeited  shall  ipso  facto  vest  in  the  Associa- 
tion. The  membership  in  the  Association,  and  all  interest  in 
the  property  of  the  Association  of  a  member  shall  ipso  facto 
cease  upon  his  disbarment,  or  a  final  judgment  of  conviction  of  a 
fdony. 

(6)  Whenever  specific  charges  of  unprofessional  conduct  shall 
be  made  against  any  member  of  the  Bar,  whether  or  not  a  mem- 
ber of  this  Associati(m,  and  the  Chairman  of  the  Committee  on 
Professional  Ethics  and  Grievances  is  of  the  opinion  that  the 
case  is  such  as  requires  investigation  or  prosecution  in  the  courts, 
the  same  shall  be  referred  by  the  Chairman  to  the  appropriate 
state  or  local  bar  association  where  such  attorney  resides  and  it 
diall  be  the  duty  of  the  Chairman,  ia  co-operation  with  the 
local  Vice-President  of  this  Association  for  the  state  where  such 
attorney  resides,  to  urge  the  appropriate  officers  or  committees 
of  state  or  local  bar  associations  to  institute  iaquiry  into  the 
merits  of  the  complaint,  and  to  take  such  action  thereon  as  may 
be  appropriate,  with  a  view  to  the  vindication  of  lawyers  un- 
justly accused,  and  the  discipline  by  the  appropriate  tribunal  of 
lawyers  guilty  of  unprofessional  conduct. 

(6)  The  committee,  with  the  approval  of  the  Executive  Com- 
mittee, shall  formulate  rules  not  inconsistent  with  this  by-law 
to  give  effect  to  the  foregoing  provisions,  which  rules  shall  be 
published  in  the  annual  reports  of  the  Association.* 

VIIL  The  Treasurer's  report  shall  be  examined  and  audited 
annually  before  its  presentation  to  the  Association,  by  a  licensed 
public  accountant  designated  by  the  President. 

IX.  The  Qeneral  Council  and  all  standing  committees  shall 
meet  at  the  time  and  place  of  the  annual  meeting  at  such  hourt 
as  their  respective  chairmen  shall  appoint. 

The  Secretiuy  of  the  Association  shall  be  the  Secretary  of  tha 
General  Council. 

X.  Special  meetings  of  any  committee  shall  be  held  at  such 
times  ^d  places  as  the  Chairman  thereof  may  appoint  Beason- 
able  notice  shall  be  mailed  by  him  to  each  member. 

^he  traveling  and  other  necessary  expenses  incurred  by  any 
committee,  standing  or  special,  for  meetings  of  such  committee 

*  Amended  August  10,  1022. 


144  AMERICAN  BAB  ASSOCIATION. 

or  otherwise,  during  the  interval  between  the  annual  meetings  of 
the  Association,  shall  be  paid  by  the  Treasurer  out  of  such  ap^ 
propriation  as  the  Executive  Committee  shall  have  made  on 
application  in  each  case  in  advance  of  its  expenditure.  Such 
application  shall  be  made  in  writing  by  the  chairman  of  each 
committee  thirty  days  before  the  mid-winter  meeting  of  the 
Executive  Committee  and  upon  a  specific  budget. 

All  committees  may  have  their  reports  printed  by  the  Secre- 
tary, upon  order  duly  made  by  the  Executive  Committee,  before 
the  aimual  meeting  of  the  Association;  and  any  such  report  con- 
taining any  recommendation  for  action  by  the  Association, 
shall  be  printed,  together  with  a  draft  of  a  bill  embodying  the 
views  of  the  Committee,  whenever  legislation  shall  be  proposed. 
Such  reports  shall  be  distributed  by  mail  by  the  Secretary 
to  all  members  of  the  Association  at  least  thirty  days  before  the 
annual  meeting  at  which  such  report  is  proposed  to  be  submitted 

It  shall  be  the  duty  of  each  Vice-President  and  member  of 
the  General  Coimcil  to  endeavor  to  procure  the  enactment  by 
the  legislature  of  his  state  of  every  law  recommended  by  the 
Association,  and  the  Secretary  shall  furnish  them  with  copies 
of  every  recommendation  and  of  every  bill  recommended  and  a 
copy  of  this  by-law;  and  whenever  the  Association  shall  by 
resolution  recommend  the  enactment  of  any  law,  the  Secretary 
shall  furnish  as  soon  as  possible,  a  copy  of  the  resolution  tp  the 
President  of  each  State  Bar  Association,  with  the  request  that 
such  Association  cooperate  with  the  local  vice*president  and 
member  of  the  General  Council  of  this  Association  and  the  Na^ 
tional  Conference  of  Commissioners  on  Uniform  State  I^aws  of 
such  state  in  having  a  bill  introduced  in  the  legislature  of  its  state 
in  conformity  with  the  recommendation  of  this  Association,  and 
use  proper  means  to  procure  the  enactment  of  the  same  into  law. 
In  every  state  where  there  is  no  State  Bar  Association,  a  copy  of 
such  resolution,  with  a  similar  request,  shall  be  sent  to  the 
President  of  the  Bar  Association  of  the  principal  cities  in  the 
state;  and  in  every  instance  where  the  form  of  bill  has  been 
recommended,  a  copy  thereof  shall  also  be  sent  with  the  resolution. 


5Y-LAWS  146 

ANNUAL  DUES. 

XI.  The  annual  dues  shall  be  payable  at  the  annual  meeting 
in  advance.  If  any  member  neglects  to  pay  his  dues  on  or  before 
June  1st  following  the  annual  meeting  it  shall  be  the  duty  of 
the  Treasurer  to  serve  upon  him,  by  mail,  a  copy  of  this  by-law 
and  notice  that  unless  the  dues  are  paid  within  one  month  there- 
after, the  default  will  be  reported  to  the  Executive  Committee 
which  may,  without  further  notice,  cause  his  name  to  be  stricken 
from  the  roll  for  non-payment  of  dues,  and  his  membership  and  all 
rights  in  respect  thereto  will  thereupon  cease. 

SECTIONS. — GBNE&AL  REGULATIONS. 

XII.  Each  Section  shall  meet  at  least  once  a  year  in  con* 
nection  with  the  meeting  of  the  Association,  but  not  during  such 
hours  as  the  Association  is  in  session. 

2.  The  proceedings  of  any  or  all  of  the  Sections  may  be  pub- 
lished from  time  to  time,  in  the  discretion  of  the  Executive  Com- 
mittee. 

3.  Any  member  of  the  Association  may  enroll  himself  as 
a  member  of  any  Section  provided  he  meets  the  requirements 
in  other  respects  of  the  by-laws  of  such  Section. 

4.  Matters  arising  in  the  meetings  of  the  Association  which 
relate  to  a  subject  with  which  a  Section  is  primarily  concerned, 
may  be  referred  to  such  Section. 

5.  Appropriations  may  be  made  from  time  to  time  by  the 
Executive  Committee  of  the  Association  to  any  Section,  to  the 
Conference  of  Bar  Association  Delegates,  and  to  the  National 
Conference  of  Commissioners  on  Uniform  State  Laws;  but  the 
financial  liability  of  the  Association  to  the  Sections  or  any  of 
them,  to  the  Conference  of  Bar  Association  Delegates,  or  to  the 
National  Conference  of  Commissioners  on  Uniform  State  Laws, 
shall  be  limited  to  such  appropriations  as  may  be  made  for  them 
and  shall  cease  upon  payment  to  the  treasurers  of  the  Sections  or 
of  the  Conferences  of  the  amount  so  appropriated. 

6.  The  chairman  or  other  oflFicer  of  each  Section  and  of  the 
Conference  of  Bar  Association  Delegates,  shall  present  to  the 
Association  at  its  annua]  meeting  a  report  in  detail  ot  its  work 
and  finances  up  to  the  preceding  June  1st. 


OFFICERS 

1922-1923. 

Pkobsident; 

JOHN  W.  DAVIS,  16  Broad  Street,  New  York,  N.  f. 

Segrbtabt, 
W.  THOMAS  KEMP,  901  Maryland  Trust  Bidg.,  Baltimore,  Md. 

Tbbasubeb, 
FREDERICK  E.  WADHAMS,  78  Chapel  Street,  Albany,  N.  Y, 

EXBCUTIVB  COMMITTEB, 

EX-omcio  Hugh  H.  Brown,  Tonopah.  Nev. 

Thb  SbotSSt'  "^^^^  ^-  <^«^i88,  Detroit,  Mich. 

Thb  Trbasurbr,  John  T.  Richards,  Chicago,  111. 

CoRDBNio  A.  Sbvebancb,  Thomas  W.  Blackburn,  Omaha,  Neb. 

Former  Proident,  Wh-uam  Brosmith,  Hartford,  Conn. 

W  6  Hiiw    ^^^'  ^-  ^'  Ellsworth,  Jamestown.  N.  D. 

Chm.  Genl.  Council,  Thomas  W.  Shblton,  Norfolk,  Va. 

New  Orleans,  La.  A.  T.  Stovall,  Okolona,  Miss. 

SECTION  OF  LEGAL  EDUCATION  AND  ADMISSIONS  TO 

THE  BAR. 

Sn^B  H.  Strawn,  Chicago,  HI.,  Chairman, 

John  B.  Sanborn,  Madison,  Wis.,  Secretary  and  Treasurer. 

SECTION  OF  PATENT,  TRADE-MARK  AND  COPYRIGHT  LAW. 

Chas.  E.  Brock,  Cleveland,  Ohio,  Chairman, 
Edward  S.  Rogers,  Chicago,  111.,  Vice-Chairman, 
Alfred  M.  Allbn,  Cincinnati,  Ohio,  Treasurer, 
Eugene  Mason,  Washington,  D.  C,  Secretary, 

JUDICIAL  SECTION. 

John  P.  Briscoe,  Prince  Frederick,  Md.,  Chairman, 
John  T.  Tucker,  Baltimore,  Md.,  Secretary. 

COMPARATIVE  LAW  BUREAU. 

William  W.  Smfthebs,  Philadelphia,  Pa.,  Chairman, 
Charles  S.  Lobingier,  Shanghai,  China,  Vice-Chairman. 
Robert  P.  Shick,  Philadelphia,  Pa.,  Secretary, 
Eugene  C.  Massib,  Uiohmond,  Va^  Treasurer. 

SECTION  OF  PUBLIC  UTILITY  LAW. 

John  B.  Sanborn,  Madison^  Wis.,  Chairman. 
Chester  I.  Long,  Wichita,  Kan.,  Vice^hairman. 
Edward  A.  Armstrong,  Newark,  N.  J.,  Secretary. 
John  Randolph  Tucker,  Richmond,  Va.,  Treasurer. 

(146) 


OFFICERS.  147 


SECTION  OF  CRIMINAL  LAW. 

Flotd  E.  Thompson,  Rock  Island,  111.,  Chairman. 

W.  O.  Hart.  New  OtleauB,  La.,  Vice'Chairman. 

Edwin  M.  Abbott,  Philadelphia,  Pa.,  Secretcary  and  Treasurer. 

SECTION  OF  CONFERENCE  OP  BAR  ASSOCIATION 

DELEGATES. 

Charum  A.  Boston,  New  York,  N.  Y.,  Chatrman. 

W.  H.  H.  Piatt,  Kansas  City,  Mo.,  Vice-Ckainnan.  ^ 

Hbrbebt  Habust,  Chicago,  111.,  Secretary, 

Nathan  William  MacChbsnbt,  Chicago,  Bl.,  Treasurer. 

NATIONAL  CONFERENCE  OF  COMMISSIONERS  ON  UNIFORM 

STATE  LAWS. 

Nathan  Wiluam  MacChesnet,  Chicago,  Bl.,  President, 
John  R.  Haboin,  Newark,  N.  J.,  Vice-President. 
GwNiGB  G.  BoGERT,  Ithaca,  N.  Y.,  Secretary. 
W.  0.  Habt,  New  Orleans,  La.,  Treasurer. 

NATIONAL  ASSOCIATION  OF  ATTORNEYS  GENERAL. 

Clifford  H.  Hii;ion,  St.  Paul,  Minn.,  President. 

E.  T.  England,  West  Virginia,  Vice-President. 

Harbt  S.  Bowman,  Santa  Fe,  New  Mexico,  Secretary-Treasurer. 


GENERAL  COUNCIL 

1922-1923 

state  Name  Residence 

L0UI8UNA  W.  0.  Hart,  Chairman New  Orleans.' 

Alabama E.  H.  Cabanbsb  Birmingham. 

Alaska  Ralph  £.  Robertson  Juneau. 

Arizona    T.  G.  Norris  Prescott. 

Arkansas    Prank  PAcn  Little  Rock. 

Californu  Charles  Gushing  San  Franciflco. 

China  Stirung  Fbssbnden    Shanghai. 

Colorado  T.  J.  O'Donnell J3enver. 

Connecticut  George  E.  Beers New  Haven. 

Delaware  Josiah  Marvel  Wihnington. 

District  of  Columbia.  .  .J.  Morrill  Chamberlain.  .Washington. 

Florida  ; Scxxtt  M.  Loptin  JackaonviUe. 

Gborgu S.  Price  Gilbert Atlanta. 

Hawah  Benjamin  L.  Marx Honolulu. 

Idaho James  F.  Ailshie Coeur  d'Alene. 

Ilunois  Frederick  A.  Brown  Chicago. 

Indiana    Charles  Martindale   Indianapolis. 

Iowa Jesse  A.  Miller  Des  Moines. 

Kansas Chester  I.  Long Wichita. 

Kentucky Wm.  Marshall  Bullitt  .  .Louisville. 

Maine    Arthur  Ritchie    Belfast. 

Martland  John  P.  Briscoe Prince  Frederick 

Massachusetts  John  Lowell   Boston. 

Michigan   Wade  Millis  Detroit. 

Minnesota  John  Junell    Minneapolis. 

Mississippi  John  D.  Sexton  Hazlehurst. 

Missouri  Jambs  H.  Harkless Kansas  City. 

Montana James  A.  Walsh Helena. 

Nebraska R.  A.  Van  Orsdel Omaha. 

Nevada  Frank  A.  Norchoss Reno. 

New  Hampshire Joseph  Madden   Keene. 

New  Jersey Edward  Q.  Keasby Newark. 

New  Mexico  Harry  S.  Bowman  Santa  Fe. 

New  York Charles  S.  Whitman New  York. 

North  Carolina  R.  L.  Smith  Albemarle. 

North  Dakota Lee  Combs  Valley  City. 

Ohio  Frank  M.  Clevenger Wilmington. 

Oklahoma    Frank  Wells   Oklahoma  City. 

Oregon  James  B.  Kerr  Portland. 

Pennsylvania  Robert  P.  Shick  Philadelphia. 

Philippine  Islands   H.  Lawrence  Noble  Manila. 

Porto  Rico  Adolph  G.  Wolf San  Juan. 

Rhode  Island  Thomas  A.  Jbnckbs  Providence. 

South  Carolina  John  P.  Thomas,  Jr Columbia. 

South  Dakota W.  F.  Mason Aberdeen. 

Tennessee   W.  H.  Washinoton Nashville. 

Texas  W.  H.  Burges  El  Paso. 

Utah   C.  R.  Hollingsworth  Oeden. 

Vermont  George  M.  Hogan  St.  Albans. 

ViRGiNU R.  R.  Prentis  Suffolk. 

Washington  Charles  0.  Bates Tacoma. 

West  Virginia J.  W.  Vandervort Parkersburg. 

Wisconsin  W.  F.  Shea  Ashland. 

Wyoming  Wm.  C.  Kinkbad  Cheyenne. 

(148) 


VICE-PRESIDENTS 

AND 

MEMBERS  OF  LOCAL  COUNCILS 

ELECTED  1922 
ALABAMA. 

Vice-President,  J.  K.  DIXON Talladega. 

Local  Council,  LAWRENCE  COOPER   Huntsville. 

GEORGE  A.  NELSON  Decatur. 

H.  U.  SIMS  Birmingham. 

W.  P.  ACKER  Anniston. 

ALASKA. 

Vice-Preffldent,JOHN  R  COBB Juneau. 

Local  Council,  RALPH  E.  ROBERTSON  Juneau. 

HERBERT  L.  FAULKNER Juneau. 

THOMAS  J.  DONOHOE  Cordova. 

ARIZONA. 

Vice-President,  CLEON  T.  KNAPP Bisbee. 

Local  Council,  CLIFTON  MATHEWS    Globe. 

A.  I.  WINSETT  Tucson. 

B.  E.  MARKS Phoenix. 

0.  J.  BAUGHN  Florence. 

ARKANSAS. 

Vice-President,  J.  H.  HAMITER  Little  Rock. 

Local  Council,  8.  H.  MANN Forest  City. 

W.  H.  MARTIN  Hot  Springs. 

J.  M.  STAYTON Newport. 

C.  T.  COLEMAN  Little  Rock, 

CALIFORNIA. 

Vice-President,  BRADNER  W.  LEE  Los  Angeles. 

Local  Council,  FRANK  M.  ANGELLOTTI San  Francisco. 

EUGENE  DANEY  San  Diego. 

J.  P.  CHANDLER   Los  Angeles. 

BEVERLY  L.  HODGHEAD San  Francisco. 

CHINA. 

Vice-President,  CHARLES  S.  LOBINGIER   Shanghai. 

Local  Council,  ARTHUR  B ASSETT  . . , Shanghai. 

RALPH  A.  FROST Hankow. 

ROLAND  S.  HASKELL Shanghai. 

CHAUNCEY  P.  HOLCOMB Shanghai. 

COLORADO. 

Vice-President,  JOHN  A.  EWING Denver. 

Local  Council,  JAMES  H.  ROTHROCK  Colorado  Springs. 

JOHN  H.  FRY  ..Denver. 

RALPH  L.  CARR Antonito. 

WM.  E.  BUTTON  Denvej. 

(149) 


150  AMSBICAK   BAB   ASSOOIATIOK. 


(CONNECTICUT. 

Vice-President,  CHRISTOPHER  L.  AVERY Groton. 

Local  Council,  EDWARD  M.  DAY Hartford. 

HARRISON  HEWITT  New  Haven 

FREDERICK  W.  HOLDEN Ansonia. 

WILLIAM  H.  COMLEY  Bridgeport. 

DELAWARE. 

Vice-President,  JOHN  BIGGS  Wilmington. 

Local  Council,  JOHN  P.  LAFFEY Wilmington. 

R.  H.  RICHARDS  Wilmington. 

S.  D.  TOWNSEND,  JR Wilmington. 

D.  J.  LAYTON  Georgetown. 

DISTRICT  OF  COLUMBIA. 

Vice-President,  GEORGE  A.  KING  Washington. 

Local  Council,  CHARLES  F.  CARUSI Washington. 

KATHERINF  R.  PIKE Washington. 

FREDERICK  S.  TYLER Washington. 

CHARLES  HENRY  BUTLER... Washington. 

FLORIDA. 

Vice-President,  GEORGE  COUPER  GIBBS Jacksonville. 

Local  Council,  M.  D.  PRICE  Miami. 

W.  B.  S.  CRICHLOW Bradentown. 

E.  P.  AXTELL Jacksonville. 

J.  P.  STOKES Pensacola. 

GEORGIA. 

Vice-President,  JOHN  A.  SIBLEY Atlanta. 

Local  Council,  FRANCIS  M.  OLIVER  Savannah. 

ALEX.  W.  STEPHENS  Atlanta. 

ARTHUR  G.  POWELL  Atlanta. 

HARRY  S.  STROZIER Macon. 

HAWAII. 
Vice-President, ALEX.  G.  M.  ROBERTSON  ....Honolulu. 
Local  Council,  WILLIAM  O.  SMITH Honolulu. 

CHARLES  F.  CLEMONS Honolulu. 

LYLE  A.  DICKEY Lihue. 

ROBBINS  B.  ANDERSON  Honolulu. 

IDAHO. 

Vice-President,  JAMES  H.  HAWLEY  Boise. 

Local  Council,  JAMES  R.  BOTHWELL  Twin  Falls. 

JOSEPH  H.  PETERSON  Pocatello. 

FREDERICK  S.  RANDALL  ....Lewiston. 

OLIVER  0.  HAGA Boise. 

ILLINOIS. 

Vice-President,  ALBERT  N.  EASTMAN  Chicaga 

Local  Council,  LOGAN  HAY  Springfield. 

HUGO  PAM   Chicago. 

JOHN  R.  MONTGOMERY  Chicago. 

PARKER  H.  HOAG Chicago. 


yiOB-PBB8IDSNT8  AHD  LOCAL  00UN0IL8.  151 


INDIANA, 

Vice-President,  ROBERT  W.  McBRIDE  Indianapolis. 

Local  Council,  DANIEL  W.  SIMMS  Lafayette. 

PAUL  G.  DAVIS Indianapolis. 

HARRY  C.  SHERIDAN Frankf orf. 

ELMER  E.  STEVENSON Indianapolis. 

IOWA. 

Vice-President,  WESLEY  MARTIN  Webster  City. 

Local  Council,  HAZEN  L  SAWYER Keokuk, 

JOHN  F.  DEVITT  Muscatine. 

£.  M.  CARR    Manchester. 

TRUMAN  S.  STEVENS Hamburg. 

KANSAS. 

Vioe-Preadent,  B.  S.  McANANY Kansas  City. 

Local  Council,  HENRY  E.  GANSE   Emporia. 

PARK  PULSIFER  Concordia. 

A.  M.  KEENE  Fort  Scott. 

WILLIAM  OSMOND  Great  Bend. 

KENTUCKTY 

Vice-President,  MATT  S.  WALTON Lexington. 

Local  Council,  GEORGE  R.  HUNT  Lexington. 

PERCY  N.  BOOTH LouisviUe. 

J.  E.  ROBBINS  Mayfield. 

GEORGE  B.  MARTIN Catlettsburg. 

LOUISIANA. 

Vice-President,  T.  JONES  CROSS Baton  Rouge. 

Local  Council,  W.  W.  YOUNG  New  Orleans. 

JESSY  BENEDICT  GESSNER..New  Orleans. 

J.  ZACH  SPEARING New  Orleans. 

WALTER  LEMANN   Donaldsonville. 

MAINE. 

Vice-President,  ISAAC  W.  DYER  Portland. 

Local  Council,  NORMAN  L.  B ASSETT  Augusta. 

WM.  H.  LOONEY Portland. 

HANNIBAL  E.  HAMLIN Ellsworth. 

CYRUS  N.  BLANCHARD Wilton. 

MARYLAND. 

Vice-President,  JAMES  P.  GORTER Baltimore. 

Local  Council,  RANDOLPH  BARTON,  JR Baltimore. 

WILLIAM  H.  LAMAR RockviUe. 

CHARLES  MARKELL   Baltimore. 

HERBERT  T.  TIFFANY  Baltimore. 

MASSACHUSETTS. 

Vice-President,  SAMUEL  WILLISTON   Cambridge. 

Local  Council,  JOHN  E.  HANNIGAN Boston. 

REGINALD  H.  SMITH Boston. 

JAMES  M.  ROSENTHAL Pittsfield. 

ROBERT  A.  B.  COOK WeUesley. 


152  AKBBIOAN  BAR  AS800IATI0N. 


MICHIGAN. 

Vice-President,  OSCAR  C.  HULL Detroit. 

Local  Council,  HENRY  M.  BATES Ann  Arbor. 

WESLEY  L.  NUTTEN Detroit. 

JUSTIN  R.  WHITING Jackson. 

GEORGE  E.  NICHOLS  Ionia. 

MINNESOTA, 

Vice-Preaident,  BRUCE  W.  SANBORN St.  Paul. 

Local  Council,  HENRY  O.  CHRI8TENSEN  ....  Rochester. 

MORRIS  B.  MITCHELL  Minneapolis. 

WM.  G.  GRAVES St.  Paul. 

HUBERT  H.  D'AUTREMONT..Duluth. 

MISSISSIPPI 

Vice-President,  WM.  D.  ANDERSON  Jackson. 

Local  Council,  J.  M.  STEVENS  Jackson. 

ROBERT  B.  RICKETTS Jackson. 

A.  T.  STOVALL Okolona. 

W.  H.  WATKINS Jackson. 

MISSOURI. 

Vice-President,  L.  NEWTON  WYLDER Kansas  City. 

Local  Council,  CHARLES  M.  BUSH  Kansas  City. 

MURAT  BOYLE   Kansas  City. 

JAMES  R.  CLAIBORNE  St.  Louis. 

O.  L.  CRAVENS Neosha. 

MONTANA. 

Vice-President,  WM.  T.  PIGOTT Helena. 

Local  Council,  MILTON  S.  GUNN Helena. 

WM.  SCALLON    Helena. 

W.  S.  HARTMAN Boseman. 

W.  M.  JOHNSTON  Billings. 

NEBRASKA. 

Vice-President,  FRANCIS  A.  BROGAN   Omaha. 

Local  Council,  HOWARD  KENNEDY   : . .  .Omaha. 

N.  H.  LOOMIS Omaha. 

C.  B.  LETTON Lincohi. 

P.  E.  RANDALL  Omaha. 

NEVADA. 

Vice-President,  P.  A.  McCARRAN  Reno. 

Local  Council,  WM.  WOODBURN   Reno. 

H.  R.  COOKE Reno. 

ROBERT  M.  PRICE. Reno. 

WM.  FORMAN  Tonopah. 

NEW  HAMPSHIRE. 

Vice-President,  REUBEN  E.  WALKER  Concord. 

Local  Council,  JAMES  W.  REMICK  Concord. 

LOUIS  E.  WYMAN  Manchester. 

HARRY  BINGHAM   Littleton. 

ORVILLE  E.  CAIN  Keene. 


YIGB-PBBSroENTS  AND  LOOAL  OOUNOILS.  158 


NEW  JERSEY 

Vice-President,  JOHN  R.  HARDIN  Newark. 

Local  Council,  GEO.  A.  BOURGEOIS  Atlantic  City. 

RYNIER  J.  WORTENDYKE  . .  .Jersey  City. 

ADRIAN  LYON  Perth  Amboy. 

SAMUEL  H.  RICHARDS  Camden. 

NEW  MEXICO. 

Vice-President,  A.  M.  EDWARDS  Santa  Fe. 

Local  Council,  W.  C.  REID  Albuquerque. 

F.  T.  CHEATAM   Taos. 

,      FRANK  W.  CLANCY   Santa  Fe. 

WM.  G.  HAYDON  East  Las  Vegas. 

NEW  YORK 

Vice-President,  HENRY  W.  TAFT  New  York. 

Local  Council,  GEORGE  H.  BON^v Syracuse. 

WILLIAM  H.  GRIFFIN New  York. 

WILLIAM  L.  RANSOM New  York. 

GEORGE  S.  TARBELL Ithaca. 

NORTH  CAROLINA. 

Vice-President,  W.  M.  PERSON Louisburg. 

Local  Council,  FRANK   THOMPSON Jacksonville. 

JULIA  M.  ALEXANDER Charlotte. 

R.  R.  KING,  Jr Greensboro. 

MARK  BROWN  AsheviUe. 

NORTH  DAKOTA. 

Vice-President,  TRACY  R.  BANGS Grand  Forks. 

Local  Council,  JOHN  KNAUF Jamestown. 

FRANK  B.  LAMBERT  Minot. 

BENTON  BAKER  Bismarck. 

TORGER  SINNESS Devil's  Lake. 

OHIO. 

Vice-President,  PROVINCE  M.  POGUE Cincinnati. 

Local  Council,  M.  J.  HARTLEY   Xenia. 

ALBERT  D.  ALCORN   Cincinnati. 

RALPH  S.  AMBLER Canton, 

W.  R.  POMERENE  Columbus. 

OKLAHOMA. 

Vice-President,  C.  B,  AMES Oklahoma  City. 

Local  Council,  HORACE  HAGAN  Tulsa. 

E.  D.  SLOUGH Ardmore. 

VICTOR  H.  KULP  Norman. 

H.  R.  DUNCAN Pawhuska. 

OREGON. 

Vice-President,  ROBERT  TUCKER    Portland. 

Local  Council,  OSCAR  HAYTER    Dallas. 

RICHARD  W.  MONTAGUE  ....Portland. 

JOHN  H.  McNARY Salem. 

CHARLES  A.  HARDY Eugene. 


154  AKBBICAN   BAB  ASSOOIATION. 


PENNSYLVANIA, 

Vice-Preadent,  WM.  M.  HARGEST Harrisburg. 

Local  Council,  HENRY  S.  BORNEMAN  PWladelphia. 

A.  M.  HOLDING Wert  Chester. 

VERNON  HAZZARD  Monongahela. 

F.  G.  MOORHEAD  Beaver. 

PHILIPPINE  ISLANDS. 

Vict-Preddent,  AMASA  O.  CROSSFIELD  Manila. 

Local  Council,  EUGENE  A.  GILMORE  Manila. 

JAMES  ROSS  Manila. 

S.  C.  SCHWARZKOPF Manila. 

FRANCIS  A.  DELGADO Manila. 

PORTO  RICO. 
Vice-President,  MANUEL   RODIGUEZ-SERRA.  .San  Juan. 
Local  Council,  JOSE  HERNANDEZ  USERA....San  Juan. 

FELIX  CORDOVA  DAVILA  ....San  Juan. 

LUIS  MUNOZ  MORALES San  Juan. 

JACINTO   TEXIDOR    San  Juan. 

RHODE  ISLAND. 
Vice-President, WILLIAM  B.  GREENOUGH  ....Providence. 
Local  Council,  CLIFFORD  WHIPPLE   Providence. 

ELMER  S.  CHASE Providence. 

FRANCIS  B.  KEENEY Providence. 

ELISHA  C.  MO  WRY Providence. 

SOUTH  CAROLINA. 

Vice-President,  SIMEON  HYDE   Charleston. 

Local  Council,  ALFRED  HUGER  Charleston. 

HUNTER  A.  GIBBES Columbia. 

HERBERT  E.  GYLES  Aiken. 

CORNELIUS  OTTS  Spartanburg. 

SOUTH  DAKOTA. 

Vice-President,  E.  O.  PATTERSON  Dallas. 

Local  Council,  WM.  G.  RICE  Deadwood. 

W.  T.  BRUELL  Redfield. 

TORE  TEIGEN   Sioux  Falls. 

A.  K.  GARDNER  Huron. 

TENNESSEE. 

Vice-President,  WALTER  P.  ARMSTRONG Memphis. 

Local  Council,  LOVICK  P.  MILES Memphis. 

W.  L.  OWEN  Covington. 

JOHN  H.  DeWTTT Nashville. 

J.  HARRY  PRICE KnoxviUe. 

TEXAS 

Vice-President,  W.  A.  WRIGHT San  Angclo. 

Local  Council,  WM.  N.  BONNER Wichita  Falls. 

HARRY  P.  LAWTHER Dallas. 

J.  M.  BURFORD Mt.  Pleasant. 

THOMAS  H.  FRANKLIN  San  Antonio. 


VI0S-PBB8IDBNTS  AND  LOCAL  COUNCILS.  155 


UTAH. 

Vice-Preadent,  W.  I.  SNYDER  Salt  Lake  City. 

Local  Coimca,  JOEL  NIBLEY Salt  Lake  City. 

E.  O.  LEE  Salt  Lake  City. 

DAVID  JENSEN   OgdeiL 

JAMES  N.  KIMBALL Ogden. 

VERMONT. 

Vice-Ptesident,  GEO.  M.  POWERS Morriaville. 

Local  Council,  ROBERT  E.  HEALY  Bexmington. 

FRANK  D.  THOMPSON Barton. 

HERBERT  G.  BARBER  Brattleboro. 

CHARLES  I.  BUTTON Middlebur>-. 

VIRGINI/L 

Vice-Preaident,  R.  E.  PEYTON,  Je Richmond. 

Local  Council,  EUGENE  C.  MASSIE  Richmond. 

JAMES  R.CATON Alexandria. 

E.  R.  WILLIAMS  Richmond. 

C.  M.  CHICHESTER  Richmond. 

WASHINGTON. 

Vice-President,  GEO.  H.  RUMMENS Seattle. 

Local  Council,  THEODORE  B.  BRUNER Aberdeen. 

FRANK  T.  POST Spokane. 

CHARLES  E.  SHEPARD  Seattle. 

LEE  C.  DELLE  Yakima. 

WEST  VIRGINA. 

Vice-President,  HARVEY  F.  SMITH   Clarksburg. 

Local  Council,  JOSEPH  WARREN  MADDEN.. Morgantown. 

CHARLES  LYNCH Clarkiurg. 

JOHN  J.  D.  PRESTON Charleston. 

E.  T.ENGLAND Charleston. 

WISCONSIN. 

Vice-President,  WILLIAM  D.  THOMPSON Racine, 

Local  Council,  ARTHUR  A.  McLEOD Madison. 

LOUIS  A.  LECHER Milwaukee. 

JOHN  E.  McCONNELL  La  Crosse. 

MAX  SCHOETZ,  Jb Milwaukee. 

WYOMING. 

Vice-President,  RALPH  KIMBALL   Cheyenne. 

Local  Council,  GEO.  E.  BRIMMER Rawlins. 

JESSE  E.  JACOBSON Wheathmd. 

MORRIS  E.  CORTHELL Laramie. 

WM.  E.  MULLEN  Cheyenne. 


STANDING  COMMITTEES  * 

1922-1923. 

Ck)MMERCE,  Trade  and  Commercial  Law. 

WM.  H.  H.  PIATT,  Kansas  City,  Miasoiiri. 
JULIUS  HENRY  COHEN,  New  York,  New  York. 
PROVINCE  M.  POGUE,  Cincinnati,  Ohio. 
WILLIAM  DENMAN,  San  Francisco,  CaUfora^i. 
RANDOLPH  BARTON,  JR.,  Baltimore,  Maryland. 

International  Law« 

JAMES  BROWN  SCOTT,  Washington,  District  of  Ccrfumbia. 
THOMAS  BURKE,  Seattle,  Washington. 
GEORGE  W.  WICKERSHAM,  New  York,  New  York. 
ROBERT  LANSING,  Washington,  District  of  Columbia. 
MANLEY  0.  HUDSON,  Cambridge,  Massachusetts. 

Insurance  Law. 

JAMES  C.  JONES,  St.  Louis,  Missouri. 
JAMES  B.  KERR,  Portland,  Oregon. 
SCOTT  M.  LOFTIN,  Jacksonville,  Florida. 
JAMES  H.  McJNTOSH,  New  York,  New  York. 
THOMAS  B.  GAY,  Richmond,  Virginia. 

Jurisprxtdench  and  Law  Reform. 

EVERETT  P.  WHEELER,  New  York,  New  York. 
HENRY  W.  TAFT,  New  York,  New  York. 
THOMAS  J.  O'DONNELL,  Denver,  Colorado. 
JOHN  R.  HARDIN,  Newark,  New  Jersey. 
TORE  TEIGEN,  Sioux  Falls,  South  Dakota. 
WILLIAM  HUNTER,  Tampa,  Florida. 
MERRILL  MOORES,  Indianapolis,  Indiana. 
FRANK  H.  NORCROSS,  Reno,  Nevada. 
GEORGE  E.  BEERS,  New  Haven,  Connecticut. 
PAUL  HOWLAND,  Cleveland,  Ohio. 
WM.  MARSHALL  BULLITT,  Louisville,  Kentucky. 
JAMES  M.  BECK,  Washington,  District  of  Columbia. 
MITCHELL  D.  FOLLANSBEE,  Chicago,  Illinois. 
WILLIAM  L.  MARBURY,  Baltimore,  Maryland. 
ROGER  SHERMAN,  Chicago,  lUinois. 

Legal  Aid. 

REGINALD  HEBER  SMITH,  Boston,  Massachusetts. 
FORREST  C.  DONNELL,  St.  Louis,  Missouri. 
MARY  F.  LATHROP,  Denver,  Colorado. 
ROBERT  P.  SHICK,  Philadelphia,  Pennsylvania. 
ALLEN  WARDWELL,  New  York,  New  York. 

*  In  the  list  of  committees,  the  first  named  member  is  Chairman  unless 
otherwise  stated. 

(166) 


STANDING  00MHITTB8.  15? 


PBorsssiONAL  Ethics  and  Gribvakcbs. 

THOMAS  FRANCIS  HOWE,  Chicago,  lUinois. 

CHARLES  THADDEUS  TERRY,  New  York,  New  York. 

MORRIS  A.  SOPER,  Baltimore,  Maryland. 

HENRY  U.  SIMS.  Birmingham.  Alabama. 

HENRY  S.  DRINKER,  JR.,  Philadelphia,  Pennsylvania. 

ABMIRAI/rT  AKD  MARITIME  LaW. 

CHARLES  C.  BURLINGHAM,  New  York,  New  York. 
FITZ-HENRY  SMITH,  JR.,  Boston,  Massachusetts. 
HARVEY  D.  GOULDER,  Cleveland,  Ohio. 
EDWARD  J.  McCUTCHEN,  San  Francisco,  California. 
JOSEPH  W.  HENDERSON,  Philadelphia,  Pennsylvania. 

PuBucmr. 

FREDERICK  A.  BROWN,  Chicago,  Illinois. 
CHARLES  S.  CUSHING.  San  Francisco,  California. 
HENRY  P.  DART,  JR.,  New  Orleans,  Louisiana. 
HAZEN  I.  SAWYER,  Keokuk,  Iowa. 
WILLIAM  A.  HAYES,  Milwaukee,  Wisconsin. 

Publications. 

WILLIAM  LEE  RAWLS,  Baltimore,  Maryland. 
ROBERT  PENINGTON,  Wilmington,  Delaware. 
WILLIAM  M.  HARGEST,  Harrisburg,  Pennsylvania. 
ROBERT  E.  PEYTON,  JR.,  Richmond,  Vu^inia. 
PRESTON  C.  WEST,  Tulsa,  Oklahoma. 


NoTEwoBTHT  Changes  in  Statute  Law. 

JOSEPH  P.  CHAMBERLAIN,  New  York,  New  York. 
CHARLES  M.  HEPBURN,  Bloomington,  Indiana. 
SHIPPEN  LEWIS,  Philadelphia,  Pennsylvania. 
WELLINGTON  D.  RANKIN,  Helena,  Montana. 
BRUCE  W.  SANBORN,  St.  Paul,  Minnesota. 


Memorials. 

W.  THOMAS  KEMP,  Baltimore,  Maryland. 
BRADNER  W.  LEE,  Los  Angeles,  California. 
ROBERT  W.  STAYTON,  Corpus  Christi,  Texas. 
FLORENCE  KING,  Chicago,  IlUnois. 
HOLLINS  N.  RANDOLPH,  Atlanta,  Georgia. 


Membership. 

SIMEON  E.  BALDWIN,  New  Haven,  Connecticut. 
MOORFIELD  STOREY,  Boston,  Massachusetts. 
FRANCIS  RAWLE,  Philadelphia,  Pennsylvania. 
HENRY  ST.  GEORGE  TUCKER,  Lexington,  Virginia. 
GEORGE  R.  PECK,  Chicago,  Illinois. 
ALTON  B.  PARKER,  New  York,  New  York. 


158  AHBBIOAN  BAB  ASSOOIATION. 

JACOB  M.  DICKINSON,  Chicago,  nimois. 

FREDERICK  W.  LEHMANN,  St  Louis,  MiflBOuri. 

FRANK  B.  KELLOGG,  St.  P^ul,  Minnesota. 

PETER  W.  MELDRIM,  Savannah,  Geoi^ia. 

ELIHU  ROOT,  New  York,  New  York. 

WALTER  GEORGE  SMITH,  Philadelphia,  Penn^lvania. 

GEORGE  T.  PAGE,  Chicago.  Illinois. 

HAMPTON  L.  CARSON,  Philadelphia,  Pennaylvania. 

CORDENIO  A.  SEVERANCE,  St.  Paul,  Minnesota. 

DWTBICl  DiBICrOBS. 

1st  District— GEORGE  B.  YOUNG,  Montpelier,  Yerniont. 
2nd  District-FREDERICK  £.  WADHAMS, Albany,  N.  Y.(Cbainnan). 

3rd  District^WILLIAM  W.  GORDON,  Savannah,  Geoigia. 

4th  District^FRANK  M.  GLEVENGER,  Wilmington,  Ohio. 

5th  District— LOGAN  HAY,  Springfield,  Illinois. 

6th  Districlr—EUGENE  McQUILLIN,  St.  Louis,  Missouri. 

7th  Distridr-HAROLD  M.  STEPHENS,  Salt  Lake  Qty,  Utah. 

8th  District— HERBERT  L.  FAULKNER,  Juneau,  Alaska. 

9th  Districtr—WALTER  F.  FREAR,  Honolulu,  Hawaii. 
10th  District-GEORGE  A.  MALCOLM,  Manila,  PhiUppme  Islands. 
11th  District— CHARLES  HARTZELL,  San  Juan,  Porto  Rico. 

Nora. — ^Under  new   memberihip  plans,   the  foUowing  districts  have  been 
established : 

I.  Maine,  New  Hampshire,  Vermont,   Massachusetts,   Rhode  Island,  Con- 
necticut ; 
II.  New  York,   PennsylYanIa,   New  Jersey,   Delaware,   MSaryland,   Dlttrlot 
of  Columbia ; 

III.  Virginia,  North  Carolina,  South  Carolina,  Georgia,  Florida,  Alabama, 

Mississippi.  Tennessee ; 

IV.  Michigan,  Onio,  Indiana,  West  Virginia,  Kentucky; 

V.  Illinois,    Wisconsin,   Minnesota,   Iowa,    North   Dakota,    South   Dakota, 

Nebraska  * 
VI.  Missouri,  Arkansas,  Louisiana,  Texas,  New  Mexico,  Oklahoma,  Kansas; 
VII.  Colorado,  Wyoming,  Montana,  Idaho,  Washington,  Oregon,  California, 

Nevada,  Utah,  Ariiona ; 
VIII.  Territory  of  Alaska ; 
IX.  Hawaii  Territory; 
X.  Philippine  Islands; 
XI.  Porto  Rico. 


SPECIAL  COMMITTEES* 

1922-1923. 

Uniform  Judicial  Procedubb. 

THOMAS  W.  SHELTON,  Norfolk,  Virginia. 
JACOB  M.  DICKINSON,  Chicago,  Illinoia. 
FREDERICK  W.  LEHMANN,  St.  Louis,  Missouri. 
ROSCOE  POUND,  Cambridge,  Massachusetts. 
FRANK  IRVINE,  Ithaca,  New  York. 

FiNANGB. 

FREDERICK  E.  WADHAMS,  Albany,  New  York. 
JAMES  R.  CATON,  Alexandria,  Virginia. 
CHARLES  MARTINDALE,  Indianapolis,  Indiana. 

Rbprbsbntatives  of  American  Bar  Assocution  to  Conferbncb  of 

Delegates. 

JOHN  H.  VOORHEES,  Sioux  Falls,  South  Dakota. 
CHARLES  A.  BOSTON,  New  York,  New  York. 
GURNEY  E.  NEWLIN,  Los  Angeles,  CaUfomia. 
THOMAS  L.  MARSHALL,  Chicago,  IlUnois. 
JOSIAH  MARVEL,  Wilmington,  Delaware. 

Change  of  Date  of  Presidential  Inauguration. 

WILLIAM  L.  PUTNAM,  Boston,  Massachusetts. 
WILLIAM  C.  KINKEAD,  Cheyenne,  Wyoming. 
LEVI  COOKE,  Washington,  District  of  Cohimbia. 
RALPH  S.  AMBLER,  Canton,  Ohio. 
AUBREY  L.  BROOKS,~Gre*ensboro,  North  Carolina. 

Classification  and  Restatement  of  the  Law. 

THOMAS  I.  PARKINSON,  New  York,  New  York. 
ROSCOE  POUND,  Cambridge.  Massachusetts. 
GEORGE  B.  ROSE,  Little  Rock,  Arkansas. 
EDWIN  M.  BORCHARD,  New  Haven,  Connecticut. 
HENRY  M.  BATES,  Ann  Arbor,  Michigan. 
GEORGE  W.  PEPPER,  Philadelphia,  Penni^Ivania. 
MIDDLETON  BEAMAN,  Washington,  District  of  Columbia. 
STILES  W.  BURR,  St.  Paul,  Minnesota. 
EDMUND  F.  TRABUE,  Louisville,  Kentucky. 

Law  of  Aeronautics. 

WILLIAM  P.  MACCRACKEN,  JR.,  Chicago,  lUinois. 
GEORGE  G.  BOGERT,  Ithaca,  New  York. 
W.  JEFFERSON  DAVIS,  San  Diego,  CaUfomia. 
PHILIP  A.  CARROLL,  New  York,  New  York. 
DANIEL  W.  IDDINGS,  Dayton,  Ohio. 


*  In  the  list  of  committees,  the  first  named  member  is  Chairman  unless 
otherwise  stated. 

6  (150) 


160  AMEBIOAN  BAR  ASSOOIATION. 


Removal  of  Government  Liens  ok  Real  Estate. 

JOHN  T.  RICHARDS,  Chicago,  Illinois. 

JOHN  A.  CHAMBLISS,  Chattanooga,  Tennessee. 

GEORGE  R.  HUNT,  Lexington,  Kentucky. 

Markino  Grave  or  Former  Chief  Justice  Salmon  P.  Chase. 

SELDEN  P.  SPENCER,  St.  Louis,  Missouri. 
ANDREW  SQUIRE,  Cleveland,  Ohio. 
GUY  W.  MALLON,  Cincinnati,  Ohio. 

Federal  Taxation. 

CHARLES  HENRY  BUTLER,  Wiscasset,  Maine. 
MURRAY  M.  SHOEMAKER,  Cincinnati,  Ohio. 
GEORGE  M.  MORRIS,  Washington,  District  of  Columbia. 
MORRIS  L.  JOHNSTON,  Chicago,"  Illinois. 
LOUIS  A.  LECHER,  Milwaukee,  Wisconsin. 

Law  Enforcement. 

CHARLES  S.  WHITMAN,  New  York,  New  York. 
MARCUS  A.  KAVANAGH,  Chicago,  Illinois. 
CHARLES  W.  FARNHAM,  St.  Paul,  Minnesota. 
WADE  H.  ELLIS,^ashington,  District  of  Columbia. 
ANNETTE  A.  ADAMS,  San  Francisco,  California. 

AmKBICAK  CmZKNSHIP. 

R.  E.  L.  SANER,  Dallas,  Texas. 

WALTER  GEORGE  SMITH,  Philadelphia,  Pennsylvania. 

ANDREW  A.  BRUCE,  Chicago,  Illinois. 

WALLACE  McCAMANT,  Portland,  Oregon. 

JOHN  LORD  O'BRUN,  Buffalo,  New  York. 

Judicial  Ethics. 

WILLIAM  HOWARD  TAFT,  Washington,  District  of  Columbia. 

LESLIE  C.  CORNISH,  Augusta,  Maine. 

ROBERT  von  MOSCHZlSKER,  Philadelphia,  Pennsylvania. 

CHARLES  A.  BOSTON,  New  York,  New  York. 

GARRET  W.  McENERNEY,  San  Francisco,  California. 


APPENDIX 


ADDRESS  OF  THE  PRESIDENT 

Bt 

•       CORDENIO  A.  SEVERANCE, 

OP   MINirsSOTA. 

THE  CONSTITUTION  AND  INDIVIDUALISM. 

The  American  Bar  Association  is  meeting  today  in  the  city 
of  the  Argonauts.  For  the  second  time  in  its  history  it  has  come 
nearly  half  way  across  the  United  States.  Although  still  much 
further  from  Manila  or  the  extremity  of  the  Aleutian  Islands 
than  from  Maine^  it  has  made  a  fair  start.  Its  meeting  place  is 
in  a  city  that  both  historically  and  in  the  present  typifies  the 
American  spirit  that  has  made  our  nation  so  great.  This  city, 
from  the  time  of  the  American  occupation,  while  engagingly  cos- 
mopolitan, has  always  been  dominated  by  the  strong,  virile  people 
of  our  race.  By  reason  of  its  beauty  and  charm,  its  glorious  moun- 
tains and  lovely  valleys,  we  are  too  apt  to  think  of  California 
only  as  a  land  of  romance  and  ease  and  dolce  fao'  mente.  The 
Creator  did  much  for  this  charmed  region,  but  the  pioneer  Ameri- 
can men  and  women  who  painfully  toiled  across  the  burning 
deserts  and  over  the  snow-capped  mountains,  or  across  the  mias- 
mic  Isthmus,  laid  the  foundations,  and  their  descendants  have 
reared  the  superstructure  which  makes  California  today  not  only 
a  beauty  spot,  but  a  great  commonwealth.  The  moimtains  and 
the  valleys  were  always  here.  They  were  not  newly  discovered 
in  1849.  The  people  or  the  descendants  of  the  people  of  a  great 
European  nation,  at  one  time  the  mistress  of  nearly  all  the 
Americans,  arrived  long  before.  But  it  was  only  when  American 
civilization  and  the  free  constitution  and  laws  of  our  country  came 
to  bless  this  land  that  the  real  California  as  we  know  it  today, 
had  its  birth.  From  that  time  this  great  state  has  unfolded  until 
today  not  only  in  its  beauty,  but  in  its  strength  and  many  re- 
sources it  is  the  admiration  of  the  world.  The  pioneers  brought 
with  them  all  those  sturdy  qualities  of  mind  and  body  and  those 
traditions  of  free  government  which  have  been  so  conspicuous 

(163) 


164  ADDRESS  OF  THE  PRESIDENT. 

from  the  time  little  scattered  bands  settled  along  the  shores  of 
the  Atlantic  and  began  pushing  themselves  westward,  step  by 
step,  turning  the  wilderness  into  a  garden.  They  brought  with 
them  that  which  enables  them  in  common  with  all  their  fellow- 
Americans,  to  live  in  peace  and  enjoy  that  which  with  their  heads 
and  hands  they  earn,  the  Constitution  of  the  United  States  with 
the  personal  and  religious  liberty  it  guaranteest  They  were 
people  with  an  inherited  reverence  and  respect  for  law.  But  for 
this  and  the  orderly  government  so  insured,  the  desert  would  have 
remained  as  it  was  from  the  beginning  of  time,  and  the  waters 
which  now  enrich  it  so  that  it  can  support  an  empire,  would 
have  continued  to  flow  unvexed  to  the  sea.  In  these  times  of 
doubt  and  speculation  when  some  good  men  and  many  bad  men 
are  giving  utterance  to  distrust  and  dissatisfaction  with  what  we 
are  glad  to  denominate  American  institutions,«,where  better  can 
we  come  to  renew  our  faith  in  the  works  our  fathers  wrought? 
When  men  and  women  assemble  as  we  do  today,  to  consider  the 
problems  that  confront  us,  and  to  consult  together  for  their  solu- 
tion, when  we  accept  the  constant  challenge  to  weigh  in  the 
balance  the  value  of  the  government  tmder  which  we  live,  it  is 
the  part  of  wisdom  to  turn  our  eyes  backward  to  see  whether  the 
system  we  have  has  served  us  well  or  ill.  Has  it  given  us  in  a 
large  measure  happiness  and  contentment,  or  the  reverse?  Has 
the  influence  of  our  institutions  been  felt  upon  the  world  at  large  ? 
Have  our  theories  of  government  coidmended  themselves  to 
thoughtful  men  of  other  lands?  Has  our  example  been  followed 
or  rejected?  The  answer  to  these  questions  may  at  least  give 
pause  to  those  who  spend  their  strength  in  denunciation  and 
whose  eyes  are  always  fixed  upon  the  few  imperfect  stones  un- 
conscious of  the  sublime  beauty  of  the  great  edifice  as  a  whole. 
Many  questions  of  vital  moment  were  considered  and  determined 
by  that  remarkable  body  of  men  who  sat  in  Philadelphia  through 
the  summer  of  1787.  They  were  wise  men,  so  wise  that  Thomas 
Jefferson,  who  was  in  Paris  at  the  time  as  the  Minister  of  the 
Colonies  with  an  exaggeration  easily  pardonable,  called  it  an 
assemblage  of  demi-gods.  They  were  students  of  history  and 
learned  in  the  science  of  government  as  it  had  developed  up  to 
that  time.  They  were  zealous  for  the  protection  of  the  freedom 
that  had  been  won  through  a  long  and  destructive  war,  but  at  thl§ 


^  OOBDBKIO  A.   8E7ERAN0B.  165 

same  time  appreciative  of  the  necessity  of  erecting  a  gpvemment 
with  the  strength  to  maintain  itself  against  foes  either  external 
or  internal.  To  recall  only  a  few  of  their  conclusions.  They 
determined  against  a  monarchy  or  an  execntiye  chosen  for  life. 
They  provided  for  a  bi-cameral  legislatare.  Washington,  when 
asked  why  the  Congress  was  made  to  consist  of  two  bodies  rather 
than  one,  having  in  mind  the  sadden  waves  of  passion  that  might 
sweep  over  an  assembly,  responded  with  a  homely  illustration. 
He  said  it  was  for  the  same  reason  that  one  poured  his  tea  into 
the  saucer — ^to  permit  it  to  cool  off.  Bemembering  the  failures  of 
pure  democracies,  the  Convention  established  a  republican,  repre- 
sentative form  of  government,  with  frequent  elections  to  the  lower 
House  and  terms  of  service  in  the  Senate  that  are  not  too  long  to ' 
keep  that  body  reasonably  responsible  to  well-considered,  popular 
will.  The  members  of  the  House  of  Representatives  were  dis- 
tributed according  to  population.  The  control  of  the  purse  was 
left  with  that  House,  as  it  has  the  sole  right  to  inaugurate  revenue 
legislation.  There  was  withheld  from  the  executive  the  power 
to  plunge  the  country  into  all  the  horrors  and  miseries  of  war. 
They  provided  that  he  could  bind  the  nation  by  no  treaty  unless 
it  was  assented  to  by  two-thirds  vote  of  the  Senate.  While  a 
veto  was  given  the  President  it  was  not  absolute  but  was  sub- 
ject to  be  overruled  by  a  two-thirds  vote  in  each  House  of  the 
Congress.  In  many  other  respects  they  limited  the  powers  of 
public  servants.  Further  enumeration  of  these  checks  is  xm- 
necessary,  except  that  above  all  they  established  what  Webster 
in  his  great  reply  to  Hayne  denominated  as  the  keystone  of  the 
arch,  a  Supreme  Court  in  which  was  vested  the  last  and  ultimate 
decision  of  all  questions  arising  under  the  Constitution  and  the 
laws  enacted  pursuant  thereto.  We  are  so  accustomed  to  these 
things  that  we  often  fail  to  reflect  that  many  of  them  were  novel 
in  the  world  at  that  time.  Even  England,  the  freest  of  all 
nations,  had  a  parliament  which  in  its  lower  house  was  in  no 
sense  representative,  as  a  member  from  Old  Samm,  with  only 
two  or  three  electors,  had  an  equal  voice  with  a  knight  of  the 
most  populous  shire  in  the  kingdom ;  and  in  the  election  of  this 
house  only  a  fragment  of  the  adult  population  had  a  share,  large 
sections  of  the  free  men  of  England  having  no  vote.  The  powers 
of  the  Commons  were  crippled  by  the  absolute  veto  of  an  heredi^ 


166  ADDRESS  OF  THE  PBE8IDENT. 

tary  house..  Today,  after  a  series  of  reform  acts^  her  parliament 
is  representative  and  the  House  of  Lords,  while  it  still  exists,  is 
so  emasculated  that  it  cannot  prevent,  except  temporarily,  the 
enactment  of  laws  passed  by  the  Commons.  Treaties  are  now 
submitted  to  Parliament  for  approval.  Since  that  date  there 
have  grown  up  the  great  self-governing  Dominions,  our  intimate 
friend  and  neighbor,  Canada,  on  the  north ;  Australia,  New  2^a- 
land,  South  Africa,  each  governed  by  its  own  laws  enacted  by  its 
own  parliament,  aad  in  no  sense  tied  to  Qreat  Britain  except 
by  the  bonds  of  affection  and  self-interest.  And  finally  Ireland, 
whose  sons  have  taken  so  important  a  part  in  governing  other 
countries,  including  our  own,  has  the  immediate  prospect  of  be- 
coming like  the  other  free  nations  in  the  British  Empire,  a  self- 
governing  people.  In  17Si  France  was  still  an  absolute  mon- 
archy, although  it  is  interesting  to  recall  that  its  courts  had  with 
indifferent  success  attempted  at  times  to  interpose  against 
tyranny.  Its  people  were  so  oppressed  that  in  its  revolution — 
largely  caused,  or  at  least  hastened,  by  the  spirit  of  liberty,  re- 
flected back  from  the  new  world — the  pendulum  swung  so  far  in 
the  opposite  direction  as  to  produce  chaos.  This  was  followed 
by  the  inevitable  reaction  into  a  dictatorship,  succeeded  by  two 
monarchies,  a  short-lived  republic,  a  second  Empire,  and  finally 
the  enduring  republic,  the  glorious  deeds  of  whose  liberty-loving 
people  during  the  last  decade  have  excited  the  admiration  of  the 
world.  Germany  consisted  of  a  large  number  of  petty  states, 
with  an  enslaved  population  under  absolute  masters,  who  hired 
out  their  subjects  as  during  our  Bevolution,  to  fight  battles  in 
which  they  had  no  concern.  After  the  attempted  revolutions  of 
1848,  which  were  quickly  suppressed,  Germans  of  liberal  belief 
swarmed  to  America  to  enjoy  our  free  government.  Then  for  a 
score  of  years  the  German  states  devoted  themselves  under  the 
leadership  of  these  various  sovereigns,  to  killing  each  other  off, 
with  the  resultant  creation  of  a  dominant  power  in  one  state,  and 
the  establishment  of  an  empire  with  a  parliament  of  shadowy 
authority.  Finally  131  years  after  our  Constitutional  Conven- 
tion, the  Elaiser,  as  an  eminent  American  expressed  it,  dropped 
his  crown  and  ran,  and  the  occupants  of  the  petty  thrones  blew 
away,  like  the  cards  in  Alice  in  Wonderland,  and  a  republic  was 
established.    Its  permanency  is  still  to  be  proved.    But  all  be- 


OOBDBNIO  A.  BEVERA.NOE.  167 

Uevers  in  popular  government  throughout  the  world  hope  that 
it  may,  in  spite  of  all  attempts  at  reaction,  maintain  itself  among 
the  free  nations  of  the  world. 

At  the  end  of  the  eighteenth  century,  and  long  after,  Italy 
was  truly  termed  a  geographical  expression,  but  now  that  beaU" 
tifnl  land,  with  its  marvelous  history,  while  nominally  a  mon- 
archy, is  in  fact  a  self-governing  nation,  and  its  blue  skies  are 
over  a  united  people  freed  from  the  domination  of  the  stranger. 
Poland,  then  partitioned  and  destroyed,  is  now  a  republic,  as  is 
Bohemia,  that  land  of  poetry  and  music,  whose  republican  con- 
stitution was  largely  drawn  in  the  old  city  of  Philadelphia  within 
sight  of  Independence  Hall.  The  Turk  had  his  bloody  hand  upon 
all  the  lands  from  Constantinople  to  Belgrade  and  the  Adriatic. 
The  Balkan  states  are  now  free,  governed  by  their  own  parlia- 
ments, and  the  Southern  Slavs,  who  were  so  long  under  the 
domination  of  the  Hapsburgs,  are  at  last  reunited  with  their 
blood  brothers,  the  Serbs,  under  a  constitution  containing  a  Bill 
of  Bights  similar  to  our  own.  Austria  and  Hungary  have  like- 
wise discarded  the  Hapsburgs.  Thus  Switzerland,  that  home  of 
free  men  for  centuries,  no  longer  remains  an  oasis  in  a  desert  of 
despotism.  Portugal  is  a  republic,  and  Spain  is  governed  by 
its  parliament.  The  Scandinavian  countries  are  genuinely  demo- 
cratic in  fact,  and  only  Russia,  of  all  the  autocracies  that  cursed 
the  continent  at  the  end  of  the  eighteenth  century,  is  still  denied 
the  benefit  of  a  government  resting  upon  the  consent  of  the 
governed.  Since  1787  all  of  the  states  of  Central  and  South 
America  have  attained  their  independence,  and  have  modeled 
their  constitutions  largely  after  that  of  the  United  States,  and  a 
number  of  them  have  made  great  economic  and  social  progress. 
Even  in  the  far  East,  Japan  now  has  its  parliament  functioning 
with  ever  increasing  powers,  and  the  great  Empire  of  China,  in 
which  lives  nearly  a  quarter  of  the  human  race,  has  cast  out  its 
foreign  monarchs,  and  chiefly  under  the  leadership  of  young  men 
educated  in  American  universities,  is  painfully,  through  disorder 
and  almost  chaos,  struggling  toward  the  status  of  a  8elf-goverq|pg 
republic.  It  is  a  noteworthy  fact  that  its  most  influential  citizen 
has  within  the  past  few  weeks  advocated  a  federal  republic 
modeled  after  our  own,  its  ancient  provinces  to  have  the  same 
status  as  American  states.    When  we  thus  contemplate  the  grad- 


168  ADDBBSS  OF  THE  PRE8IDSNT. 

ual  adoption  by  people  of  diverse  races  and  historic  background 
of  most  of  the  fundamental  principles^  and  in  many  cases  the 
actual  forms^  embodied  in  the  American  Constitution^  it  would 
seem  that  the  j)icture  might  cause  thpse  who  are  seeking  its 
overthrow  or  substantial  modification^  to  hesitate  and  consider 
whether  such  a  remarkable  concensus  of  human  opinion  should 
be  disregarded.  It  is  not  indelicate  for  an  American  to  recall 
that  the  marvelous  progress  of  our  country,  attained  through 
individual  freedom  and  not  based  upon  its  suppression,  has  excited 
the  admiration,  and  in  some  instances,  the  envy  of  the  people  of 
other  lands.  But,  say  the  critics,  it  is  mere  assumption  to  at- 
tribute the  tremendous  development  of  the  United  States  to  its 
constitution  and  laws.  America,  they  say,  possesses  an  equable 
climate,  a  profusion  of  minerals,  vast  forests,  and  fertile  lands. 
These  blessings,  or  some  of  them,  were  denied  to  portions  of  the 
older  world.  But  is  the  suggestion  of  these  critics  an  answer? 
There  are  other  virgin  lands  with  equal  or  greater  natural  riches, 
endowed  in  all  respects  as  abundantly  as  ours.  But  where  can 
one  point  to  an  expansion  and  achievement  in  all  lines,  both 
individual  and  collective,  accompanied  by  freedom  of  action  and 
the  resultant  human  happiness  and  contentment  comparable  to 
that  of  America  ?  The  nearest  approach  is  in  the  great  dominions 
of  that  mother  land  of  the  English-speaking  race  whose  children 
have  carried  civilization  and  order  into  every  comer  of  the  earth 
where  they  have  planted  their  flag.  But  it  must  be  remembered 
that  in  the  main  the  theories  of  free  government  of  America  and 
the  nations  of  the  British  Empire  had  a  common  origin.  The 
germ  of  our  legislative  system  was  the  old  witenagemot.  The 
guarantees  wrung  from  a  tyrannical  monarch  at  Bunnymede, 
the  principles  for  which  Hampden  stood,  the  declarations  in  the 
Bill  of  Rights  in  1689,  were  and  are  our  common  heritage.  Free 
government  had  in  a  large  measure  been  enjoyed  under  the 
colonial  charters.  It  was  because  of  the  denial  to  the  people  of 
the  Colonies  of  these  fundamentals  of  free  government  by  an 
ar]|^trary  king  and  a  parliament  partly  corrupt  and  largely  sub- 
servient, that  Americans  broke  their  bonds  with  the  mother 
country.  Had  England  then  heeded  the  words  of  Chatham, 
Burke  and  Pox,  the  history  of  the  world  in  the  last  century  and 
a  half  would  have  been  far  different.    It  is  a  matter  for  supreme 


OOBDBinO  A.   SBYEEAKOB.  160 

gratification  that  in  these  latter  years^  when  the  government  of 
Great  Britain  has  been  entrusted  to  the  political  heirs  of  the  school 
of  Fox,  that  the  attitude  of  the  Colonies  has  been  approved  by  the 
people  of  that  great  Empire.  The  attempt  made  in  the  eighteenth 
century  to  subject  free  citizens  on  this  continent  to  a  political 
control  in  which  they  had  no  voice,  has  met  with  their  condem- 
nation. Sentiment  alike  in  the  free  nations  of  the  British  Em- 
pire and  in  the  XTnited  States  is  now  for  orderly  liberty  under 
laws  made  by  the  people  in  the  exercise  of  powers  only  restricted 
by  the  people  themselves.  It  naturally  follows  that  any  differences 
that  may  arise  from  time  to  time  between  those  nations  and  ours 
will  be  settled  as  they  have  been  in  the  past  half  century,  either 
by  negotiations  or  by  trial  in  a  legal  tribunal,  in  which  impartial 
justice  will  be  rendered.  The  adjustment  or  settlement  of  such 
disputes  by  any  other  method  is  unthinkable.  The  wager  of 
battle  will  not  be  revived  in  such  case.  The  same  prophecy  may 
safely  be  made  as  to  the  future  relations  between  the  people  of 
America  and  those  ancient  friends,  the  citizens  of  the  free  repub- 
lic of  France.  The  only  serious^misunderstandings  between  that 
country  and  ours  arose  during  the  first  and  second  empires. 
Those  empires  have  disappeared,  and  in  spite  of  attempts  by  un- 
friendly propaganda  to  establish  the  contrary,  we  know,  and  the 
world  knows,  that  imperialistic  designs  on  the  part  of  France 
disappeared  with  the  last  empire.  In  the  harmony  between 
Great  Britain,  France  and  America  rests  the  future  peace  of  the 
world.  Those  who  seek  to  disturb  that  harmony  are  the  enemies 
of  mankind.  To  insure  the  government  of  this  world  by  law  the 
youth  of  these  peoples  gave  their  lives,  and  today  sleep  upon 
innumerable  hillsides  from  the  Channel  to  the  Vosges.  Since 
the  last  meeting  of  this  Association,  the  most  significant  public 
event  has  been  the  signing  of  a  treaty  between  the  great  maritime 
powers,  providing  for  the  limitation  of  naval  armaments.  It  is 
a  matter  of  profound  satisfaction  that  this  result  was  achieved 
upon  the  initiative  of  a  distinguished  American  lawyer,  the 
Secretary  of  State,  and  that  his  chief  coadjutor  was  the  leader  of 
the  American  Bar,  our  dearly  loved  friend,  Elihu  Boot.  Thus  the 
great  powers  have  in  effect  said  that  in  the  future  any  matter  of 
difference  between  them  shall  be  settled  as  private  men  compose 
or  litigiite  their  disagreements,  i^^d  that  there  shall  be  no  longer 


170  ADDKESS   OF  THE  PBSSIDBNT. 

aggressive  warfare.  Only  such  naval  farce  was  retained  as  seemed 
necessary  to  repel  attack.  This  does  not  mean  absolute  disarma- 
ment. The  wise  men  who  conducted  the  negotiations  resulting 
in  this  treaty  had  vividly  before  them  the  memory  of  the  great 
war,  and  realized  while  they  were  well  disposed  to  peace  and 
government  by  law,  there  were  other  people  in  whom  as  yet  a 
like  confidence  could  not  be  reposed.  A  proposition  of  absolute 
disarmament  either  on  land  or  sea,  would  be  like  the  suggestion 
of  the  dismissal  of  all  the  police  force  and  other  law  enforcement 
officers,  simply  because  the  great  majority  of  mankind  is  law- 
abiding.  Hence  tiie  proposal  of  the  Secretary  of  State  which 
was  adopted  by  the  Conference,  embodied  that  element  of  common 
sense  and  appreciation  of  possibilities  which  always  moves  the 
lawyer  in  advising  his  client.  Until  the  millennium,  account 
must  be  taken,  both  in  international  and  domestic  affairs,  of 
the  wicked  and  ill-disposed.  Beautiful  theories  evolved  from  the 
easy  chairs  of  dreamers  must  give  way  before  the  practical  neces- 
sities indicated  by  human  experience.  In  the  eighteenth  centary 
Diderot,  with  his  great  intellect^  conceived  a  scientific  theory  of 
a  state.  Catherine  of  Bussia  invited  him  to  St.  Petersburg, 
where  for  days  he  expounded  to  her  his  brilliant  conceptions.  In 
the  end  she  said : 

M.  Diderot,  I  have  listened  with  the  greatest  pleasure  to  all  that 
your  brilliant  intelligence  has  imparted.  With  all  your  great  principles 
(which  I  understand  very  well),  one  could  make  fine  books  out  very 
bad  business.  You  forget  in  all  your  plans  for  reform  the  difference  in 
our  positions.  You  only  work  on  paper  which  endures  all  things;  it 
opposes  no  obstacle  either  to  your  imagination  or  your  pen,  but  I,  poor 
Empress  that  I  am.  work  upon  the  human  skin,  which  is  irritable  and 
ticklish  to  a  very  oifferent  degree. 

It  has  been  the  predominating  trait  of  our  race  that  in  matters 
of  law  and  government  it  has  had  the  saving  grace  of  common 
sense.  This  led  to  the  limitations  in  our  constitution.  Perfec- 
tion in  this  world  is  unattainable.  The  best  that  can  be  hoped 
is  an  approximation  to  the  perfect.  A  government  in  which  all 
legislation  will  be  wise  and  all  administration  perfect  is  far  be- 
yond the  possibility  of  human  kind.  The  making  and  executi«n 
of  laws  and  the  administration  of  justice  are  all  subject  to  human 
imperfections  and  human  limitations.  That  any  system  may  be 
and  will  be  improved  as  defects  are  made  apparent,  is  sure,  so 
long  as  the  best  informed  and  most  patriotic  are  in  control.    In 


COBDENIO  A.   SEVERAKOE.  171 

civilized  nations^  gov^nment  and  the  laws  and  the  interpretar 
tion  of  the  laws  are  not  static.  Conditions  change^  and  with  these 
changes  new  applications  of  old  fundamental  conceptions  and 
rules  must  be  made.  This  is  an  orderly  evolution.  Its  most 
conspicuous  example,  perhaps,  lies  in  the  growth  of  the  common 
law,  and  in  the  application  of  fundamental  doctrines  embodied  in 
our  constitution  to  the  changing  conditions  of  modem  life.  As 
said  by  the  great  jurist  who  announced  the  opinion  of  the 
Supreme  Court  in  the  Debs  case: 

Constitutional  provisions  do  not  change,  but  their  operation  extends 
to  new  matters  as  the  modes  of  business  and  the  habits  of  life  of  the 
people  vary  with  each  succeeding  year. 

Far  different  from  this  are  the  revolutionary  demands  of  the 
mere  theorist.  Because  of  some  minor  failure  he  does  not  hesitate 
to  denounce  principles  of  law  and  government  evolved  from  the 
best  thought  of  human  kind  and  tested  by  experience.  The 
ancient  landmarks  he  disregards.  The  value  of  human  ambition 
which  has  lead  to  human  achievement  is  discarded  by  the  disciples 
of  a  certain  school  of  political  philosophy.  The  incentive  of  the 
hope  of  personal  success,  which  history  has  shown  to  be  absolutely 
essential  in  the  development  of  the  world,  means  nothing  to  them. 
The  fact  that  men  will  not  labor  with  diligence  unless  they  can  en- 
joy the  fruits  of  their  toil,  is  ignored  by  those  who  preach  commun- 
ism and  denounce  the  exaltation  of  the  individual.  They  forget 
that  the  selfishness  which  would  take  from  the  industrious  that 
which  he  has  achieved,  for  distribution  among  the  whole,  is  far 
greater  than  the  selfishness  of  the  man  who  seeks  to  possess  a 
bit  of  land  for  the  exclusive  use  of  himself  and  his  family.  The 
old  doctrine  that  the  Englishman's  home  is  his  castle  means 
more  than  that  it  shall  not  be  invaded  by  governmental  processes. 
Behind  and  beyond  that,  it  signifies  that  there  is  something  that 
is  sacred  to  him  and  his  wife  and  children,  because  he  has  attained 
it.  This  does  not  at  all  imply  that  there  are  no  limitations  to 
the  right  to  property  or  to  the  power  its  possession  may  give. 
Again,  we  have  in  the  law  the  interposition  of  the  same  doctrine 
of  reason  and  common  sense.  While  a  citizen  may  have  that 
which  is  his,  he  may  not  so  use  it  as  to  injure  his  neighbor.  To 
cite  a  familiar  example:  Freedom  of  commerce  throughout  our 
country  was  one  of  the  impelling  causes  for  the  adoption  of  our 


172  ADDRESS  OF  THB  PBE8IDBNT. 

constitution.'  In  Gibbons  against  Ogden,  the  Supreme  Court 
preserved  this  right  from  impairment.  In  modem  days,  when 
transportation  is  so  largely  conducted  by  rail^  no  new  principle  of 
law  was  required  to  authorize  the  establishment  by  the  govern- 
ment of  fair^  non-discriminatory  rates  and  charges.  This  is 
nothing  more  than  the  application  of  the  old  regulations  fixing 
the  fares  of  the  watermen  on  the  Thames^  but  the  right  of  the 
owner  to  possess  his  property  in  the  railroads,  and  to  protection 
against  fixing  rates  at  so  low  a  figure  as  to  result  in  confiscation, 
is  preserved.  In  this  way  abuses  that  existed  in  the  early  days 
of  railroading  through  which*  one  locality  was  destroyed  and  an- 
other built  up,  or  one  shipper  was  prevented  from  conducting 
lawful  competition  against  another  by  discriminatory  rate^  have 
been  prevented,  and  no  constitutional  or  laMrful  rights  have  been 
impinged  upon.  The  community  is  given  the  advantage  of  the 
efforts  of  the  managers  of  competitive  railways  to  improve  their 
service,  and  the  latter  have  the  incentive  of  personal  success  to 
incite  them  to  their  best  efforts  in  serving  the  public.  "Unlees  the 
rates  are  inordinately  high,  excellence  of  service  is  ordinarily 
more  important  than  the  amount  of  the  charges.  Experience  in 
Europe  and  America  alike  has  demonstrated  the  futility  of 
expecting  such  service  when  this  element  of  personal  ambition 
on  the  part  of  the  operators  of  these  systems,  is  withdrawn,  and 
competitive  conditions  destroyed,  as  is  the  case  under  govern- 
mental operation. 

It  is  unnecessary  to  enlarge  upon  the  innumerable  instances 
in  which  our  Constitution  has  been  found  adapted  to  new  situa- 
tions and  to  conditions  in  modem  life  which  were  undreamed  of 
by  its  makers  without  in  any  way  striking  down  the  philosophic 
conceptions  upon  which  it  is  based,  or  impairment  of  individual 
achievement.  The  steamboat,  the  railroad,  the  telegraph,  tho 
telephone,  the  pipe  line  have  come,  and  the  powers  granted  to  the 
federal  government  with  all  their  limitations,  have  been  found 
ample  and  sufficient  for  their  proper  regulation.  The  airplane  is 
with  us,  and  laws  governing  its  use  are  in  process  of  development, 
as  they  are  in  the  case  of  the  still  later  radio.  All  this  has  been 
accomplished  without  the  repression  of  genius  or  undue  interfer- 
ence with  personal  freedom.  With  a  like  recognition  of  individual 
rights  which  are  often  directly  affected  by  a  correct  distribution 


COBDBNIO  A.   8SVEBAN0E.  173 

and  balance  of  jurisdictions^  after  infinite  debate  and  repeated 
judicial  decisions^  the  fundamental  principles  differentiating  be- 
tween the  powers  of  the  federal  government  and  those  of  the 
states  are  fairly  well  established.  This  delimination  of  the  line 
between  federal  and  state  authority  has  been  worked  out  by  our 
great  court  of  last  resort^  save  only  as  to  the  single  question  of 
the  right  of  a  state  to  secede  from  the  union^  which  compelled  a 
resort  to  the  arbitrament  of  arms.  The  result  of  that  fratricidal 
war  was  to  settle  forever  the  perpetuity  of  our  union^  and  the 
supremacy  of  our  constitution.  The  scars  of  that  conflict  have 
long  since  healed.  The  bitterness  it  engendered  has  been  wiped 
away^  and  in  the  gallant  armies  that  threw  back  across  the  Marne 
at  Chateau  Thierry  the  hosts  of  autocracy^  and  who,  step  by  step, 
drove  out  the  invader  in  those  days  of  carnage  in  the  Argonne, 
there  was  no  distinction  either  in  gallantry  or  patriotism  be^ 
tween  the  sons  and  grandsons  of  the  men  who  in  the  last  century 
marched  under  the  Stars  and  Bars,  and  those  who  followed  the 
Stars  and  Stripes. 

This  great  charter,  having  shown  itself  strong  enough  to  with- 
stand the  shock  of  wars,  external  and  internal,  and  having  stood 
over  our  people  as  a  shield  and  protection  in  time  of  peace,  while 
we  have  grown  from  a  nation  of  three  millions  living  adjacent 
to  the  Atlantic  seaboard,  to  one  of  one  hundred  and  ten  millions, 
stretching  from  ocean  to  ocean,  and  taking  in  the  islands  of  the 
sea,  it  would  seem  as  though  debate  as  to  its  value  should  have 
been  concluded.  3ut  the  very  guarantees  of  a  free  press  and  free 
speech,  with  the  opportunity  thus  given  for  criticism  by  men  of 
varying  convictions  or  desires,  makes  its  preservation  a  matter 
of  solicitude  and  constant  concern  to  the  patriot  and  lover  of  hi.«< 
country.  But  aside  from  direct  attack  by  the  dissatisfied,  the 
wanton  or  the  vicious,  which  will  be  discussed  later,  there  have 
grown  up  tendencies  of  thought,  which,  unless  averted,  may 
destroy  the  true  balance  between  the  rights  of  the  states  and  those 
of  the  federal  government,  and  at  the  same  time  weaken  individ- 
ual morale  by  breeding  a  reliance  upon  government  in  the  place 
of  the  personal  self-dependence  of  the  citizens  which  has  been  the 
mainspring  of  our  national  development.  Owing  to  our  vast 
expansion  and  the  intimate  inter-communication  between  states 
and  the  right  of  the  citizens  of  the  several  states  to  equal  privi- 


174  ADDRESS  OF  TKB  PBJBSIDSNT. 

leges  in  each  of  the  other  states  the  natural  result  has  been  to 
eliminate  state  lines  in  many  ways.  It  could  not  well  be  other* 
wise^  and  the  framers  of  the  constitution  so  intended.  Our 
transportation  systems^  many  of  them  reaching  half  way  across 
the  continent^  carrying  principally  a  conmierce  interstate  in  char- 
acter^ must  necessarily^  if  regulation  is  to  be  effective,  be  in  the 
main^  under  the  control  of  the  union.  The  great  industrial  con- 
cerns of  the  country,  whose  trade  is  nationwide,  and  whose  un- 
checked power  would  tend  to  subvert  the  liberties  of  the  people, 
must  be  subject  to  like  control,  for  the  protection  of  the  people 
of  all  states  alike ;  but  we  are  too  apt  to  forget  that  there  is  a  vast 
field  in  which  the  public  interest  requires  that  there  shall  be  no 
substitution  of  federal  for  local  supervision  or  legislation,  and  fur- 
ther, that  in  the  absence  of  a  clear  necessity,  there  should  be  no 
interposition  by  either.  Following  great  wars  there  is;  as  compared 
with  normal  times,  always  a  tendency  to  an  expansion  of  govern- 
mental power,  with  the  resultant  increased  interference  with  the 
freedom  of  the  individual.  It  has  been  markedly  the  case  since 
the  World  War,  The  mobilization  of  men  and  money  with  the 
necessary  temporary  legislation  increasing  the  powers  of  the 
executive  and  minimizing  for  the  time  the  personal  rights  of  the 
citizen,  produces  an  abnormal  condition  of  the  public  mind.  In 
ancient  days,  when  autocracy  was  the  rule,  war  was  the  usual 
state.  To  a  free  people  in  modern  days,  war  is  abhorrent.  It  is 
appealed  to  as  the  last  resort  only  for  the  purpose  of  bringing  a 
just  peace  and  the  individual  comfort  and  well-being  that  are  the 
concomitants  of  peace.  When  the  emergency  passes  with  the 
ending  of  the  war,  there  should  be  a  speedy  reversion  to  peace- 
time conditions.  While  war  is  in  progress  everything  is  sub- 
ordinated to  the  one  purpose  of  a  speedy  victory  for  our  armies. 
At  the  call  of  the  nation  men  offer  up  their  lives  for  its  preserva- 
tion. The  people  submit  to  having  their  food,  their  clothing, 
the  sales  of  their  products  and  an  infinite  number  of  other  matters 
controlled  by  government.  The  intimate  connection  with  govern- 
ment  thus  established  has  a  reflex  action  in  causing  the  people  to 
lose  their  self-dependence  and  to  look  to  the  federal  government 
for  things  which,  in  a  normal  state  of  peace,  are  entirely  of 
state  or  individual  concern.  The  President  and  the  Congress  are 
asked  to  interfere  in  purely  local  matters;  the  federal  treasury 


OOBDBNIO  A.  BSVBBANOB.  175 

is  raided^  or  attempted  to  be  raided  in  the  interest  of  things  in 
no  way  national  in  character.  Federal  aid  in  money  is  demanded 
to  supplement  funds  voted  by  the  states  for  improvements  or  to 
pay  the  cost  of  state  activities.  Groups  of  people  even  seek  this 
aid  in  support  of  enterprises  which  are  in  effect  individual.  The 
congressman  or  senator  is  looked  upon  as  successful  or  otherwise 
in  the  measure  that  he  is  able  to  secure  appropriations  benefiting 
only  the  whole  or  part  of  his  immediate  constituency.  Legisla- 
tion sometimes  degenerates  into  a  race  between  the  members  to 
see  who  can  secure  the  most.  In  this  way  taxes  that  are  imposed 
for  the  general  benefit  are  many  times  directly  or  indirectly  di- 
verted to  private  use.  The  tax-payer  in  one  state  is  compelled  to 
bear  a  part  of  the  burdens  of  some  distant  part  of  the  country  in 
which  neither  the  nation  nor  he  himself  has  any  but  the  most  re^ 
mote  interest.  All  this  tends  to  breed  extravagance.  People  who 
scan  their  tax  bills  are  apt  to  insist  upon  economy  in  public  expen- 
ditures which  are  in  the  charge  of  local  officials  and  to  bring  pres- 
sure to  produce  economical  administration.  But  they  seem  to 
feel  that  these  supplemental  funds  so  secured  from  the  general 
government  in  Washington  are  like  manna  from  Heaven,  for- 
getting that  they  represent  the  fruits  of  tiie  labors  of  their  fellow- 
citizens.  This  so-called  federal  aid  turned  over  by  the  general 
government  to  the  states  without  any  control  as  to  its  expenditure, 
has  already  amounted  to  hundreds  of  millions  of  dollars  a  year. 
Even  that,  however,  is  preferable  to  the  establishment  of  addi- 
tional bureaus  at  the  seat  of  government  with  thousands  of  em- 
ployees and  inspectors  to  oversee  the  expenditure  of  these  funds. 
Public  opinion  should  be  built  up  to  check  these  constant  raids 
upon  the  federal  treasury.  The  courts  are  powerless  in  the 
matter,  and  the  only  remedy  is  in  the  development  of  a  sound 
public  sentiment  in  the  direction  of  local  and  individual  self- 
reliance.  Neither  communities  nor  citizens  should  stand  like 
beggars,  hat  in  hand,  asking  alms  from  Washington.  There  had 
also  developed  both  before  the  World  War  and  in  a  more  marked 
degree  since,  a  movement  for  the  establishment  of  bureaus  and 
commissions  not  only  in  the  federal  government,  but  in  the 
various  states,  which  are  given  greater  or  less  powers  of  interfer- 
ence with  the  freedom  of  action  of  individuals,  and  in  some  cases 
tend  to  make  them  more  dependent  upon  the  aid  of  the  govern- 


176  ADDRBSS  OF  THB  PBB8IDBNT. 

ment  or  the  state>  and  less  upon  their  own  exertions.  With  the 
increasing  complexity  of  our  civilization^  some  of  these  commis- 
sions art  suitable,  proper  and  necessary,  and  if  conducted  with 
due  regard  to  constitutional  rights,  are  valuable,  but  in  many 
instances  they  are  distinctly  mischievous,  and  improperly  hamper 
private  initiative.  They  create  an  enormous  roll  of  ofiBcers  and 
employees  supported  at  public  expense.  In  certain  cases,  while 
there  is  a  reasonable  excuse  for  their  exiatence,  the  advantage 
flowing  from  the  exercise  of  their  functions  is  of  far  less  value 
than  their  cost,  even  leaving  to  one  side  their  unfortunate  effect 
upon  public  morale.  It  is  as  true  now  as  when  it  was  first  uttered 
that  the  people  are  governed  best  who  are  governed  least.  This 
country  has  not  grown  to  be  the  greatest,  most  powerful  and 
happiest  in  the  world  through  the  activities  of  boards  or  bureaus, 
but  only  through  the  efforts  and  genius  of  its  virile,  strong  and 
intelligent  people,  with  the  assurance  given  by  the  constitution 
that  they  shall  enjoy  the  results  of  their  labor.  We  have  made 
this  marvelous  progress  by  respecting  the  rights  of  the  individual 
recited  in  the  Declaration  of  Independence.  If  we  do  not  check 
the  tendency  to  set  up  a  bureaucratic  government,  centering  in 
Washington,  we  invite  disaster.  The  United  States  is  not,  as 
was  asserted  of  the  late  Oerman  Empire,  an  entity  free  from 
moral  or  other  restraints  over,  above  and  apart  from  the  people, 
but  it  is  a  composite  of  the  people  themfielves.  Its  powers  are  not 
unlimited.  The  Oovemment  possesses  only  those  from  which  the 
people  parted  for  the  general  welfare,  and  its  activities  should 
be  confined  within  the  narrow  limits  consistent  with  the  per- 
formance of  proper  governmental  duties.  The  wise  men  who 
wrote  the  constitution  did  not  intend  to  place  the  citizen  in  lead- 
ing strings.  The  government  is  the  servant  of  the  people.  It  is 
instituted  not  to  suppress,  but  to  render  certain  their  liberties. 
The  constitutions,  both  federal  and  state,  are  full  of  provisions 
setting  bounds  to  what  their  respective  legislatures  may  do.  In 
spite  of  these  limitations,  the  growth  of  the  so-called  police  power 
in  these  later  days  is  a  matter  of  profound  concern  to  all  lovers  of 
our  country.  If  legislators  are  permitted  to  run  riot  under  the 
pretended  exercise  of  this  power,  the  constitutional  guarantees 
for  the  protection  of  liberty  and  property  will  be  destroyed.  If 
contracts  between  individuals  truly  private  in  character  can  be 


OOBDBNIO  A.   SBVBBANCB.  177 

rendered  valueless  by  the  fiat  of  a  bare  majority  of  a  legislative 
body^  under  the  plea  of  emergency  or  necessity,  and  i|  the  legisla- 
ture is  permitted  to  be  the  unhampered  judge  of  the  existence 
of  such  necessity  or  emergency,  what  becomes  of  the  constitutional 
provision  rendering  such  contracts  immune  from  legislative  at- 
tack ?  If  a  legislature  can  by  a  simple  resolution  declare  that  a 
business  or  occupation  never  before  deemed  to  be  affected  with 
a  public  interest  and  thus  subject  to  regulation,  is  in  fact  so 
affected,  what  limits  are  there  to  what  it  may  do?  The  enlarge- 
ment of  the  scope  of  the  police  power  in  recent  years  has  gone  far 
in  the  direction  of  a  communistic  state.  That  this  has  not  been 
intended  in  general,  either  by  legislatures  or  courts,  is  imdoubted. 
But  that  its  effect  has  been  toward  that  result  is  likewise  beyond 
reasonable  dispute.  Borne  was  not  built  in  a  day,  and  a  constitu- 
tion can  be  overthrown  in  time  as  surely  by  gradual  encroach- 
ments as  by  sudden  revolution.  Every  undue  weakening  of  its 
inhibitions  prohibiting  the  invasion  of  the  rights  of  the  indi- 
vidual,* is  a  step  towards  state  supremacy,  and  each  piece  of 
legislation  of  this  character  forms  a  precedent  for  another.  If 
we  believe  in  the  principles  upon  which  our  government  was 
founded^  we  should  scrutinize  with  jealous  care  new  proposals 
which  affect  the  liberty  of  personal  action,  to  see  whether  they 
square  with  the  ancient  doctrines  voiced  by  our  fathers  in  the 
constitution.  The  exposition  and  enforcement  of  these  limita- 
tions^ whenever  they  are  exceeded,  is  the  function  of  the  judiciary. 
Therefore  judges  must  not  only  have  character  and  lofty  ethical 
views,  but  they  must  have  learning,  not  only  in  what  may  be 
termed  the  technique  of  the  legal  profession,  but  a  broad  educa- 
tion in  the  history  and  great  fundamental  principles  of  govern- 
ment. They  should  be  informed  as  to  the  theories  upon  ^ich  the 
states  of  antiquity  were  based,  and  be  enlightened  as  to  the  ele- 
ments which  gave  strength  and  the  weaknesses  which  led  to 
downfall.  They  should  have  a  thorough  knowledge  of  the  growth 
of  constitutional  law  in  England  and  the  American  Colonies 
previous  to  our  revolution; — all  this  and  more  should  be  the 
equipment  of  our  judiciary  so  that  they  may  know  'from  the 
results  of  human  experience,  the  value  of  and  the  necessity  for 
the  maintenance  of  the  great  safeguards  embraced  in  our  constitu- 
tion and  the  amendments,  setting  bounds  to  the  action  of  the 


i 


178  ADDRESS  01*  THE  PBBBIDBNT. 

(^Bcials  of  the  states  and  the  nation.  Only  with  this  thorough 
training  are  they  fitted  to  apply  to  concrete  cases  as  they  arise, 
the  protection  secured  to  ns  by  the  great  charter  of  onr  liberties. 
The  Bench  is  recruited  from  the  Bar;  an  ill  educated  and  unin- 
formed Bar  thus  necessarily  must  result  in  an  ill-equipped  Bench. 
It  was  not  to  enable  lawyers  to  make  more  money  by  intelligently 
practicing  their  profession^  that  this  Association  and  its  co-ordi- 
nated bodies^  the  state  and  local  associations,  adopted  the  resolu- 
tions with  which  you  are  all  familiar,  looking  to  a  better 
preparation  for  the  practice  of  the  law.  Such  incentive  would 
have  been  imworthy  of  the  Bar,  and  would  have  done  violence  to 
its  honorable  traditions.  The  reason  lay  far  deeper  than  that.  It 
was  to  enable  the  Bar  and  Bench  to  administer  with  wisdom  and 
intelligence  American  justice  between  man  and  man,  and  between 
the  citizen  and  the  state.  More  and  more  such  administration 
involves  the  application  of  the  provisions  of  our  constitution. 

This  fact  was  recognized  a  third  of  a  century  ago  by  Mr.  Justice 
Miller,  who  in  one  of  his  masterly  lectures  said : 

The  importance  of  a  thorough  knowledge  of  constitutional  law  to 
those  who  propose  hereafter  to  practice  the  profession  of  the  law  in 

this  country,  can  hardly  be  exaggerated The  time  has  come 

when  the  Constitution  and  laws  of  the  United  States  are  not  the  mere 
theoretical  object  of  the  thou^ts  of  the  statesman,  the  lawyer  or  the 
man  of  afifairs;  for  the  operations  of  its  government  now  reach  to  the 
recesses  of  every  man's  business,  and  force  themselves  upon  every  man's 
thoughts. 

In  times  of  unrest  and  loose  thinking,  such  as  we  are  going 
through  at  present,  the  clear  definition  and  enunciation  of  these 
principles  as  they  come  to  be  applied  from  day  to  day,  are  of  the 
highest  importance.  The  judges  must  not  only  have  the  firmness 
to  state  with  definiteness  and  certainty  that  the  individual  rights 
of  the  citizen  may  not  be  encroached  upon  either  by  the  executive 
or  by  a  temporary  majority  in  a  congress  or  a  legislature;  that  all 
the  checks  and  balances  between  the  departments  of  the  federal 
government,  between  the  union  and  the  states,  and  between  both 
these  governments  and  the  people  must  be  preserved  in  their 
integrity)  but  in  addition  they  must  be  possessed  of  the  learning 
to  make  clear  the  reasons  for  their  conclusions.  Those  to  whom 
these  restraints  are  irksome  and  who  believe  in  a  parliamentary 
form  of  government  with  unlimited  powers,  recognize  clearly  that 


OOBDBNIO   A.   SBVERAKOB.  179 

their  easiest  method  of  attack  is  to  assail  the  power  of  the  courts. 

In  1821  Chief  Justice  Marshall  said : 

An  attack  upon  the  judiciary  is  in  fact  an  attack  up(m  the  union. 
The  judicial  department  is  well  imdestood  to  be  that  throiigh  which 
the  government  may  be  attacked  most  successfully  because  it  is  without 
patronage,  and,  of  course,  without  power.'  And  it  is  equally  well  under- 
stood that  every  subtraction  from  its  jurisdiction  is  a  vital  wound  to  the 
government  itself.  The  attack  upon  it,  therefore,  is  a  masked  battery 
aimed  at  the  government  itself. 

In  the  earlier  days  of  the  republic  the  exercise  of  its  proper 
jurisdiction  by  the  Supreme  Court  called  forth  heated  denuncia- 
tions by  executives  and  legislators,  whose  activities  it  sought  to 
restrain  within  the  limits  prescribed  for  them.  At  least  two 
presidents  of  the  United  States  refused  to  follow  its  decisions. 
Politicians  and  newspapers  assailed  the  great  tribunal,  but  serene 
and  confident  in  the  conclusiveness  of  their  reasoning,  Marshall, 
Story  and  their  colleagues  went  their  way,  and  unaffected  by 
popular  clamor,  did  their  duty.  Mr.  Justice  Story  in  the  Dart^ 
mouth  College  case,  said : 

It  is  not  for  the  judges  to  listen  to  the  voice  of  persuasive  eloquence 
or  popular  appeal.  We  have  nothing  to  do  but  pronounce  the  law  as 
we  find  it,  and  having  done  this,  our  justification  must  be  left  to  the 
impartial  judgment  of  our  country. 

After  the  passions  and  controversies  of  the  hour  had  passed, 
this  impartial  judgment  was  rendered,  and  these  great  judges  took 
their  place  among  the  immortals. 

In  all  of  Shakespeare  there  is  no  more  splendid  passage  than 

that  describing  the  meeting  between  the  old  Chief  Justice  of 

England  and  the  young  King,  who  in  his  lawless  youth  had  been 

committed  for  contempt  for  striking  the  judge  when  upon  the 

Bench.    The  Chief  Justice  said  in  his  justification : 

Your  Highness  pleased*  to  foiiget  my  place. 
The  majesty  and  power  of  law  and  justice. 
The  image  of  the  King  whom  I  presented. 
And  struck  me  in  my  very  seat  of  judgment; 
Whereon,  as  an  offender  to  your  father, 
I  gave  bold  way  to  my  authority 
And  did  commit  you. 

The  king  replied : 

You  are  right,  justice,  and  you  weish  this  well; 
Therefore  still  bear  the  balance  andthe  sword; 
....    You  did  commit  me 
For  which  I  do  commit  into  your  hand 
The  unstain'd  sword  that  you  have  used  to  bear, 
With  this  remembrance,  Uiat  you  use  the  same 
With  the  Uke  bold,  just,  and  impartial  spirit. 
As  you  have  done  'gainst  me. 


180  ADDRESS  OF  THE  FBBSIDBNT. 

We  have  no  kingly  office,  but  the  judges  represent  the  words 
and  the  spirit  of  our  constitution,  and  have,  with  rare  exceptions, 
enforced  them  with  a  ^'  bold,  just  and  impartial  spirit,''  and  for 
this  they  pire  held  in  honor  by  the  good  men  and  women  of  our 
country  whose  liberties  they  have  preserved.  Nevertheless,  we 
have  lately  seen  a  renewal  in  certain  quarters  of  these  attacks 
upon  the  judiciary.  Large  bodies  of  men  have  resented  their 
judgments  when  adverse  to  their  contentions,  and  in  some  cases 
by  formal  resolutions  have  stated  that  they  would  determine  for 
themselves  the  constitutionality  of  laws  and  would  not  regard 
themselves  as  bound  by  the  decisions  of  the  courts  in  that  respect. 
There  have  been  widespread  complaints  against  and  attempts  at 
times  successful,  to  limit  by  legislation  the  jurisdiction  of  the 
courts  in  affording  protection  'Against  the  invasion  of  personal 
rights.  In  an  address  delivereu  before  the  American  Federation 
of  Labor  on  Flag  Day,  a  senator  of  the  United  States  denounced 
the  action  of  the  Supreme  Court  in  holding  acts  of  the  CoQgress 
and  of  state  legislatures  unconstitutional  as  pure  usurpation 
and  the  exercise  of  a  power  not  granted  by  the  constitution.  He 
later  repeated  this  address  upon  the  floor  of  the  Senate.  He 
termed  the  judges  a  "  judicial  oligarchy.'' 

And  said : 

The  time  has  come  when  we  must  put  the  axe  to  the  root  of  this 
monstrous  growth  upon  the  body  of  our  government.  The  usurped 
power  of  the  federal  courts  must  Se  taken  away,  and  the  federal  juoges 
must  be  made  responsible  to  the  public  will. 

He  further  said : 

What  I  propose  is  that  Congrees  shall  be  enabled  to  override  this 
usurped  judicial  veto,  and  to  declare  finally  the  public  policy,  just  as 
it  has  the  power  to  override  the 'Presidential  veto  so  that  we  may 
realize  in  fact  the  fundamental  purpose  of  the  Constitution  as  declared 
in  Article  1,  Section  1,  "  that  all  lei^islative  powers  herein  granted  shall 
be  vested  in  a  Congress  of  the  United  States  which  shall  consist  of  a 
Senate  and  House  o?  Representatives." 

His  remedy  was  a  proposed  constitutional  amendment  to  read 
as  follows : 

That  no  inferior  federal  judge  shall  set  aside  a  law  of  Congress  on 
the  ground  that  it  is  unconstitutional.  That  if  the  Supreme  Court 
assumes  to  decide  any  law  unconstitutional,  or  by  interpretation  under- 
takes to  assert  a  public  policy  at  variance  with  the  statutory  declaration 
of  Congress,  whidi  alone  under  our  system  is  authorized  to  determine 
the  public  policies  of  government,  the  Congress  may,  by  repassing 
the  law,  nulUfy  the  action  of  the  court. 


OOBDBNIO  ▲.   BBYBaiNOB.  181 

It  will  be  noted  that  the  senator  made  two  fundamental  propo- 
sitions :  First,  that  the  power  exerted  by  the  court  in  declaring 
statutes  unconstitutional  is  a  usurped  power  not  granted  by  the 
Constitution  of  the  United  States;  and  second,  that  Congress 
alone  under  our  system  has  authority  to  determine  the  public 
policies  of  government.  As  I  had  occasion  to  point  out  in  a  recent 
address  before  one  of  the  state  bar  associations,  we  challenge  the 
correctness  of  both  these  statements.  That  the  power  is  not  one 
that  is  usurped  is  clear.  It  had  been  exercised  by  the  courts  of 
Massachusetts,  New  York,  Virginia  and  North  Carolina  as  to 
statutes  in  derogation  of  provisions  of  their  respective  constitu- 
tions before  the  federal  constitution  was  adopted.  There  can  be 
no  question  that  these  decisicms  were  within  the  knowledge  of  the 
members  of  the  federal  convention,  as  was  the  fact  that  it  bad 
been  recognized  by  the  Continental  Congress,  which,  by  resolution 
requested  the  courts  of  law  and  equity  of  the  states  to  decide  and 
adjudge  according  to  the  treaty  of  peace  between  the  United 
States  and  Great  Britain,  anything  in  acts  or  parts  of  acts  of 
the  legislatures  of  the  states  to  the  contrary  notwithstanding. 
In  the  notes  of  the  Constitutional  Convention  it  appears,  from 
remarks  of  numerous  members,  that  it  was  contemplated  that 
such  power  should  be  exercised  by  the  federal  courts,  and  its 
necessity  was  fully  appreciated.  Madison  said  in  the  convention 
that  he 

considered  the  difTerence  between  a  system  founded  on  the  legidatxirea 
only,  and  one  founded  on  the  people,  to  be  the  true  difference  between  a 

league  or  treaty,  and  a  constitution A   law  violatins  a 

treaty  ratified  by  a  pre-existing  law  might  be  ^'espected  by  the  judges 
as  a  law,  though  an  unwise  ana  perfidious  one.  A  law  violating  a  con- 
stitution established  by  the  people  themselves  would  be  considered 
by  the  judges  as  null  and  void. 

In  the  Pennsylvania  Convention  called  to  ratify  the  constitu- 
tion, James  Wilson,  afterwards  Justice  of  the  Supreme  Court, 
said: 

I  had  occasion  on  a  former  day  to  state  that  the  power  of  the  Con- 
stitution was  paramount  to  the  power  of  the  legislature  acting  under 
that  Constitution,  for  it  is  possible  that  the  legislature  enacting  in  that 
capacity  may  tranagress  the  bounds  assigned  to  it,  sikI  an  act  may  pass 
through  the  usual  mode,  notwithstanding  that  tranqgression  ^  but  when  it 
comes  to  be  discussed  before  the  judges— when  they  consider  itf  prin- 
ciples and  find  it  to  be  incompatible  with  the  superior  power  of  the 
Constitution  it  is  their  duty  to  pronounce  it  void. 

Many  similar  contemporaneous  expressions  might  be  quoted. 


182  ADDRESS  OF  THB  PRE6IDBNT. 

This  power  was  fully  expounded  in  the  Pederalisi.  Ouriouflly 
it  was  approved  in  a  letter  written  by  Jefferson  to  Madison  from 
Paris  on  June  20,  1787,  while  the  convention  was  in  session. 

The  Constitution  was  thus  adopted  with  the  complete  knowl- 
edge that  the  judicial  power  included  the  duty  of  sustaining  con- 
stitutional provisions  as  against  legislation  either  federal  or  state 
that  contravened  them.  This  power  was  only  attacked  whto 
some  years  later  its  exercise  ran  counter  to  what  was  deemed  by 
individuals  or  parties  desirable  in  spite  of  the  Constitution. 

For  many  years  past,  however,  the  exercise  of  this  jurisdiction 
by  the  courts  has  met  with  general  acquiescence,  and  criticisms, 
when  made,  have  ordinarily  been  as  to  the  conclusions  of  the 
courts  rather  than  a  denial  of  their  authority. 

The  second  proposition  asserted  by  the  senator  to  the  effect 
that  Congress  alone  under  our  system  has  authority  to  determine 
the  public  policies  of  government,  is  not  true  without  the  addi- 
tion that  such  public  policies  must  be  determined  in  obedience 
to  the  limitations  in  the  Constitution.  He  reads  out  of  Article  1, 
Section  1,  relating  to  the  legislative  powers  of  Congress  the  words, 
"  herein  granted,"  and  treats  this  section  as  though  it  read  that 
"all  legislative  powers  shall  be  v«sted  in  the  Congress.^'  This 
fundamental  error  vitiates  his  conclusion. 

The  Congress  has  no  unlimited  power  of  legislation.  There 
are  certain  specific  matters  concerning  which  it  may  legislate. 
All  others  are  reserved  to  the  states  or  the  people.  If  the  proposed 
constitutional  amendment  should  be  adopted,  not  only  would 
Congress  have  unlimited  right  to  deal  with  subjects  that  have 
always  been  looked  upon  as  belonging  to  the  states  and  reserved 
for  their  exclusive  cognizance,  but  it  could  wipe  out  the  Bill  of 
Bights  and  all  the  protection  that  it  gives  to  the  people.  Thought- 
ful men  are  impressed  with  the  danger  of  the  growth  of  federal 
power  in  matters  of  local  concern,  even  when  Congress  is  acting 
within  the  scope  of  the  present  Constitution.  The  proposal  is  to 
withdraw  all  guaranties  and  limitations  whatsoever.  It  is  a 
matter  of  real  concern  that  the  Federation  of  Labor  in  its  resolu- 
tions passed  following  this  address,  approved  the  proposed  amend- 
ment and  added  another  resolution  to  the  effect  that  amendments 
to  the  constitution  should  be  made  easier.  Such  action  by  the 
representatives  of  so  large  an  organization  is  symptomatic  of  a 


OORDBNIO  A.  SBVERAHOB.  183 

very  serious  condition  of  the  public  mind.  In  substance  this 
proposal  is  not  a  mere  amendment^  but  if  adopted  would  work  a 
revolution  in  our  system  of  government.  Heretofore  the  United 
States  has  always  been  held  and  considered  to  be  a  government 
of  limited  powers.  If  such  an  amendment  should  be  adopted^ 
the  powers  of  the  Congress  would  be  unlimited^  and  a  mere 
majority  of  that  body^  composed  largely  of  men  not  learned  in 
the  law  could  overthrow  all  tiie  hard-won  safeguards  of  individual 
liberty  obtained  by  brave  men  down  through  the  centuries  from 
Magna  Charta  to  the  day  when  they  were  put  in  lasting  form  in 
the  federal  and  state  constitutions. 
De  Tocqueville,  in  his  "  Democracy  in  America/^  said : 

The  power  of  the  judiciary  to  declare  a  law  invalid  if  it  trausceiids 
the  powers  given  by  the  Constitution,  is  one  of  the  strongest  barriers 
ever  devised  against  the  tyrannies  of  political  assemblies. 

It  must  not  be  overlooked  that  the  proposed  amendment  em- 
bodies in  itself  no  limitations.  It  applies  even  where  the  viola- 
tion of  the  Constitution  is  so  clear  that  it  is  not  even  arguable. 
As  it  cannot  be  pretended  that  the  principle  involved  in  the  law 
so  repassed  can  have  any  general  application^  it  follows  that  each 
time  a  bill  in  violation  of  some  constitutional  limitation  became 
a  law  by  re^passing  it  in  Congress,  it  would  result  in  nullifying 
such  limitation  as  to  a  particular  subject,  leaving  it  in  full  vigor 
as  to  all  other  matters.  It  involves  the  abandonm^it  of  all  con- 
tinuity of  decision  upon  constitutional  questions,  and  the  same 
underlying  principle  might,  and  probably  would,  be  determined 
differently  by  successive  congresses.  It  amounts  to  submission  of 
a  proposition  to  amend  the  Constitution  pro  tanto  to  a  vote  of  the 
electors  in  the  various  congressional  districts  where  the  contest 
would  be  fought  out  over  this  and  all  other  pending  issues  in  the 
election  of  members  of  Congress.  It  thus  possesses  even  less 
virtue  than  the  proposed  recall  of  judicial  decisions  by  direct  vote 
of  the  people,  which  was  advocated  some  years  ago  by  a  man  who 
was  dearly  loved  by  his  countrymen,  and  but  for  whose  advocacy 
the  scheme  would  have  attracted  no  attention  whatever.  As  it 
was,  even  with  the  prestige  of  his  great  name,  it  could  not  stand 
discussion  and  is  no  longer  heard  of.  It  contained  no  appeal  to 
the  good  common  sense  of  America. 

While  it  is  inconceivable  that  such  amendment  can  receive 
any  substantial  support  in  Congress,  or  that  it  could  in  any  event 


184  ADDRESS  OF  THB  PBSSIDKNT. 

secure  the  votes  of  three-fourths  of  the  states^  still  the  mere  fact 
that  a  senator  of  the  United  States  advances  such  a  proposition 
emphasizes  the  necessity  of  a  wider  study  of  the  constitution  and 
a  fuller  appreciation  by  the  people,  of  its  value.  It  is  only  one 
of  a  series  of  attacks  that  are  being  made  upon  established  insti- 
tutions. The  state  of  mind  of  the  world  for  the  last  few  years  has 
been  revolutionary.  People  have  been  restive  under  any  restraint, 
no  matter  how  salutary.  They  have  sought  change  for  the  sake  of 
change.  There  has  been  a  feeling  that  in  some  way  all  inequalities 
and  unhappiness  could  be  cured  by  government.  While  this  senti- 
ment has  made  less  headway  in  our  free  America  than  in  other 
lands,  it  has  even  here  become  so  widespread  that  it  should  be  a 
matter  of  serious  concern  to  every  patriot. 

Recent  investigations,  both  official  and  unofficial,  have  demon- 
strated the  shocking  extent  to  which  direct  agitation,  in  part 
public,  in  part  secret,  against  our  whole  system  of  government  has 
gone.  Large  organizations  of  inen  extending  to  every  industrial 
center  in  America,  are  at  work  carrying  on  an  active  propaganda 
directed  to  the  eventual  destruction  of  our  constitution  and  the 
substitution  therefor  of  a  government  such  as  has  brought  chaos 
to  the  great  Russian  people.  The  principal  leader  of  one  branch 
of  this  movement  has  recently  returned  from  Moscow,  bringing 
instructions  and  aid  from  the  oligarchy  which  is  there  in  power. 
It  has  been  publicly  stated  by  the  President  of  the  American 
Federation  of  Labor  that  this  organization  so  affiliated  with  Soviet 
Russia,  has  at  least  a  thousand  men  well  supported  and  com- 
pensated, working  in  the  interests  of  this  movement  and  penetrat- 
ing every  section  of  the  republic.  The  speeches  made  at  the  Third 
Internationale  in  Russia,  which  was  attended  by  representatives 
from  this  country,  advocated  not  only  open  propaganda  in  other 
countries  of  the  world,  including  our  own,  but  the  secret  commis- 
sion of  unlawful  acts  and  the  circulation  of  literature  forbidden 
by  law. 

One  of  the  American  delegates  in  a  public  utterance  at  Moscow 
used  this  language  with  reference  to  the  publications  of  his  party 
in  America : 

All  the  organs  of  the  press  (the  majority  of  which  at  the  present 
moment  are  published  unaeiground)  are  under  the  immediate  control  of 
the  directive  bodies  of  the  party.    All  local  organisational  procedures 


OOBDKNIO  ▲.  SBVESAKOB.  185 

are  eooidinated  with  the  central  organization.     Increased  and  unre- 
mitting attention  is  given  to  the  observance  of  party  discipline. 

And  agaiB  he  said : 

For  the  purpose  of  augmenting  the  success  of  propaganda,  the  o^ter 
of  gravity  of  party  work  was  lifted  to  the  plants,  mills,  and  mines. 
For  that  purpose,  agents  of  agitation  were  appointed  wherever  there 
were  memiberB  of  the  party.  Tliey  were  guides  in  Communist  watch* 
words  and  ideas. 

Another  delegate  thus  paid  his  respects  to  the  patriotism  of 

the  American  Legion : 

The  demobilised  soldiers  (who  for  the  most  part  did  not  see  the 
battle  front),  under  the  direction  of  former  officers  (sons  of  various 
bankers  and  rich  men),  have  organised  themselves  into  **  the  American 
Legion  "  for  the  purpose  of  protecting  "  the  Constitution  and  free  insti- 
tutions of  America."  This  last  is  accomplished  by  riotous  attacks  on  the 
headquarters  of  Communists  and  trade-unions  and  the  beating  up  of 
active  workmen. 

Under  extremely  difficult  conditions  the  Communists  in  America  have 
had  to  reorganise  themselves  from  half-legal  and  open  organisations  into 
absolutely  imderground  organisations. 

Three  delegates  united  in  publishing  a  report  of  the  American 

Communist   partj^   and   in   this   pronunciamento   occurs   the 

following: 

The  class-conscious  workers  of  America  more  and  more  turn  toward 
^ou.  fellow  workers  of  Soviet  Russia.  Your  example  is  to  them  a  lesson  ^ 
m  the  revolutionary  struggle,  for  which  American  bourgeois  d&noonay 
and  the  working  class  oiAmerica  are  both  organizing  and  jireparing. 
....  They  expect  that  the  2nd  Congress  ol  the  Communist  Inter- 
national will  <*«tahliwh  the  general  stafif  of  the  world  revolution.  Long 
hve  Soviet  Russia  1  Long  live  the  Dictatcnrsftiip  of  the  Proletariat! 
Long  Uve  the  III  International  I 

The  secretary  of  the  Communist  party  of  America  published  a 
statement  in  which^  among  other  things,  he  said : 

"My"  countiy,  America,  formerly  the  most  progresnve  country  in 
the  world,  has  now  become  the  most  reactionary;  the  impending  Ameri- 
can revolution  will  be  more  cruel  and  severe  than  the  revolutions  in 
Russia  and  Crermany. 

These  expressions  are,  of  course,  those  of  extremists.  They 
and  their  associates  now  comprise  a  very  small  percentage  of  the 
people  of  this  country.  But  in  addition  to  the  so-called  under- 
ground publications,  the  book  stalls  on  the  street  comers  in  our 
cities  are  coTered  with  literature  written  and  published  to  stir 
up  hatred,  produce  discontent,  and  in  many  cases,  in  a  more  or 
less  blind  and  furtive  way,  incite  to  violence.  One  publishing 
house  alone  advertises  an  output  of  many  thousands  of  books  and 
pamphlets  per  day,  the  greater  part  of  which  are  of  this  character. 


186  ADDRB8S  OF  THE  PBBSIBBNT. 

The  influ^ice  of  such  publications^  especially  upon  immature 
minds,  is  necessarily  tremendous.  Influenced,  no  doubt,  by  such 
vicious  teachings,  sabotage  has  largely  increased  and  the  law 
has  been  flouted  by  bands  of  men  in  different  parts  of  the  coun- 
try at  times  of  industrial  troubles.  To  a  large  extent  these 
propagandists  are  foreign  bom,  although  with  shame  it  must  be 
confessed  that  many  of  them  were  bom  and  reared  under  the  free 
institutions  of  America.  The  Chairman  of  the  Executive  Council 
of  the  National  Civic  Federation  in  a  pamphlet  published  as 
late  as  June  24th,  of  the  present  year  said : 

A  committee  of  The  National  Civic  Fe^ieration^  which  has  spent  two 
years  studying  the  revolutionary  movements  in  this  country,  was  greatly 
disturbed  to  find  the  extent  to  which  they  have  penetrated  aU  groups 
making  up  our  national  life.  Not  the  least  disquieting  feature  of  the 
situation  is  the  fact  that  so  many  men  in  high  places  have  little  realiza^ 
tion  of  what  is  going  on  about  them.  For  instance,  it  was  learned  that, 
under  the  veiy  dome  of  the  Capitol  at  Washington,  there  was  an  organi- 
zation made  up  of  a  hundred  and  fifty  secretaries  to  senators  and  repre- 
sentatives which  was  completely  in  the  hands  of  the  Reds.  It  had  been 
in  existence  for  two  years,  holding  its  meetings  in  the  caucus  room  of 
the  House,  and  yet  few  persons,  even  in  Washington,  had  ever  heard 
of  it.  But  Moscow  and  the  Red  "  liberal "  press  of  all  nations  had  heard 
of  it  and  knew  and  exploited  the  fact  that  the  **  U.  S.  Congress  Jr."  had 
voted  in  favor  of  the  recognition  of  Soviet  Russia. 

Innumerable  instances  of  a  similar  nature  and  equally  disturbing  in 
churches,  colleges,  social  reform  and  other  agencies  have  been  cited  by 
the  committee,  all  i^owing  the  same  widespread  ignorance  on  the  part 
of  public'  men  and  women  with  r^ard  to  the  pernicious  activities  of 
these  subversive  elements.  This  is  all  the  more  significant  when  it  is 
realised  the  the  governing  bodies  of  such  institutions  are  generally 
from  the  rank  of  our  most  successful  business  men. 

In  so  far  as  this  literature  does  not  incite  to  violence  or  revolu- 
tion, where  it  does  not  proceed  beyond  the  limits  of  permissible 
debate,  its  authors  are  protected  by  the  guaranty  of  a  free  press 
vouchsafed  to  them  by  the  very  constitution  they  are  seeking  to 
destroy.  When  they  go  beyond  that  limit,  it  is  the  duty  of  every 
lover  of  his  country  to  uphold  the  hands  of  our  government 
officials,  and  see  that  such  activities  are  punished  to  the  full 
extent  of  the  law,  and  that  such  agitators  as  are  foreign  born  be 
deported  to  the  place  from  whence  they  came.  But  these  remedies 
are  not  enough.  From  the  foundation  of  our  government  our 
doors  have  been  freely  open  to  the  nations  of  all  Europe.  In  the 
early  days  we  were  the  only  important  state  contending  for  the 
privilege  of  a  change  of  allegiance.  Our  second  war  with  Great 
Britain  very  largely  grew  out  of  contentions  over  that  question. 


OOBDSNIO  A.  SEYBBANQB.  187 

We  have  latterly  placed  some  restriction  upon  the  right  to  come 
to  our  shores,  but  these  Jrestrictions  operate  more  efficiently  to 
control  the  quantity  than  the  quality  of  the  immigrant.  We  have 
been  too  careless  of  the  priceless  value  of  our  heritage.  We  have 
too  freely  received  into  our  citizenship  without  investigation^ 
men  whose  chief  mission  has  been  to  plot  and  agitate  against  the 
free  institutions  xmder  which  they  have  enjoyed  liberty  and  oppor- 
tunity such  as  were  undreamed  of  in  the  lands  of  their  birth.  We 
have  unloaded  and  turned  loose  in  America  great  numbers  of 
men  whose  departure  from  their  native  land  was  for  their  coun- 
try's good.  This  must  end.  The  inquiry  into  the  fitness  of  a 
man  to  become  a  citizen  of  this  republic,  should  begin  before,  not 
after,  he  comes  here.  It  should  not  be  a  perfunctory  inquiry,  but 
as  thorough  as  humanly  possible.  Our  government  should  know 
the  type  of  person  who  presents  himself  as  a  self-invited  guest 
in  our  house.  We  still  have  room  for  the  honest,  industrious  and 
law-loving  from  other  lands.  We  have  no  place  for  any  other.  , 
Forty  years  ago  a  great  American  poet  wrote  these  words : 

Oh  Liberty,  white  Goddess  I    Is  it  well 

To  leave  the  gates  unguarded?    On  thy  breast 

Fold  Sorrow's  children,  soothe  the  hurts  of  fate, 

Lift  the  down-trodden,  but  with  hands  of  steel 

Stay  those  who  to  thv  sacred  portals  come 

To  waste  the  gifts  of  freedom.    Have  a  care 

Lest  from  thy  brow  the  clustered  stars  be  torn 

And  trampled  in  the  dust.   For  so  of  old 

The  thronging  Goth  and  Vandal  trampled  Rome, 

And  where  the  temples  of  the  Csesars  stood 

The  lean  wolf  unmolested  made  her  lair. 

But  mere  prosecutions,  supervision  of  immigration  and  depor- 
tation of  the  imfit  will  not  solve  the  question. 

The  agitator  who  keeps  himself  immime  from  prosecution  by 
confining  his  attacks  upon  our  institutions  to  stirring  up  discon- 
tent, arraying  men  against  their  fellow  citizens,  assailing  the  law 
and  its  ministers  and  denouncing  the  limitations  of  our  constitu- 
tion, may,  in  many  cases  do  more  harm  than  the  anarchist,  the 
very  violence  of  whose  teachings  usually  repels  rather  than  con- 
vinces. Such  men  are  the  curbstone  orators,  the  parlor  socialists 
and  the  like.  They  are  continually  at  work;  they  always  have 
abimdant  time.  All  that  can  be  said  and  all  that  can  be  done  by 
these  apostles  of  destruction  will  go  for  naught  if  the  conscience 
and  intelligence  of  America  ia  aroused  to  the  danger.    A  people 


188  ABDRBSS  OF  THB  PBIKIDBNT. 

who^  in  spite  of  racial  origin^  were  so  fused  into  one  in  the  terrible 
crucible  of  war  when  assailed  from  without,  will  not,  il  awakened, 
permit  either  the  destruction  or  the  diminution  of  that  freedom 
our  fathers  won.  The  laws  we  have  must  be  respected.  Impartial 
justice  must  be  rendered  in  our  courts.  It  must  be  made  clear 
that  personal  ideas  of  government  are  no  excuse  for  crime  and 
that  all  the  power  of  the  states  and  the  nation  will  be  used  to 
insure  the  constitutional  right  of  law-abiding  people  to  live  and 
work  in  peace  and  security.  But  beyond  all  this,  the  assailant 
of  our  free  institutions  must  not  go  imanswered.  The  vast  influ- 
ence of  the  American  Bar  should  be  massed  against  this  challenge 
to  civilization.  In  co-operation  and  harmony  with  other  patriotic 
organizations  we  should  inaugurate  and  carry  on  a  nation-wide 
movement  to  the  end  that  the  men  and  women  of  our  generation 
and  the  youth  of  the  coming  generation  be  shown  the  value  of  that 
liberty  under  the  law  which  our  forefathers  established.  Upon 
the  rostrum,  in  the  press,  and  above  all,  in  our  schools  of  every 
grade,  our  people  should  be  taught  that  our  constitution  and 
laws  and  the  courts  that  interpret  them  do  not  destroy  but  pre- 
serve their  liberties.  Misconceptions  caused  by  lawless  agitators 
should  be  corrected.  Ill-considered  prejudice  must  be  made  to 
give  way  to  reason.  It  should  be  emphasized  that  in  our  free  land 
with  its  laws  made  by  the  people  and  for  the  people  there  is  no 
place  for  so-called  class  consciousness,  and  that  we  will  tolerate 
no  government  by  classes ;  that  universal  suffrage  entails  universal 
responsibility.  By  bringing  home  these  fundamental  truths  we 
shall  be  f aithfiQ  to  our  oaths  to  support  our  incomparable  Consti- 
tution, and  will  make  certain  that  without  impairment  it  will  in 
the  future,  as  in  the  past,  guard  and  save  the  freedom  of  all  our 
people. 


THE  DEVELOPMENT  OF  THE  LAW  OF  WATERS  IN 

THE  WEST. 

BY 

LUCIEN  SHAW, 

CHIEF  JUBTIGB  OF  CAUFOBNIA. 

It  is  necessary  to  define  and  limit  the  subject  of  this  address. 
The  region  known  as  the  West  is  frequently  understood  to 
include  all  the  territory  west  of  the  Allegheny  Mountains. 
This  embraces  at  least  twenty*three  states,  each  haying  laws  on 
nearly  every  subject  relating  to  land  that  are  in  soni«  respects 
different  from  those  of  the  others.  The  part  of  it  which  was 
acquired  from  Mexico  in  1848  by  the  treaty  of  Guadalupe 
Hidalgo  is  divided  into  five  states,  not  including  parts  of 
Colorado  and  Wyonung,  and  each  of  these  also  have  laws  on  the 
subject  that  differ  from  the  others  in  some  particulars.  I  am 
not  familiar  with  the  details  of  these  laws  in  any  of  the  states 
except  California.  It  was  the  state  first  created  out  of  the 
Mexican  acquisition  and  in  it  the  law  of  waters  first  became 
important  enough  to  be  the  subject  of  judicial  decision.  The 
laws  of  the  neighboring  states  have  generally  followed  the  course 
of  dedsion  in  California.  I  shall,  therefore,  confine  myself  to 
the  discussion  of  the  law  of  waters  in  California. 

The  development  of  that  law  in  California  is  a  part  of  the 
history  of  the  development  and  growth  of  the  state.  The  first 
industry  pursued  here,  that  of  placer  mining,  required  the  liberal 
use  of  water  to  separate  the  gold  from  the  soil,  sand  and  gravel 
in  which  it  was  embedded.  It  was  confined*  to  the  mining  re- 
gions. The  later  and  more  widespread  industry  of  agriculture 
required  still  larger  quantities  of  water  to  grow  the  annual  crops, 
trees  and  vines  to  which  the  climate  and  soil  were  so  well  adapted. 

The  recent  use  of  water  to  produce  electrical  energy  adds 
another  valuable  use  to  that  element.  The  increase  in  popula- 
tion and  the  corresponding  increase  in  these  various  industries 
have  produced  a  demand  for  water  which  it  has  taxed  all  possible 
sources  to  supply.    The  controversies  arising  from  these  condi- 

(180) 


190  LAW  OP  WATBES  IN  THB  WEST. 

tions  have  been  taken  to  the  courts  and  have  compelled  decisions 
upon  various  phases  of  the  law  of  waters.  Our  reports  contain 
more  decisions  on  that  subject  than  on  any  other. 

In  determining  this  law  the  courts  have  had  to  take  into 
consideration  the  different  purposes  for  which  water  is  used,  the 
various  methods  of  applying  and  diverting  it,  and  the  different 
sources  from  which  the  water  can  be  obtained^  The  subjects  of 
the  decisions  on  water  law  may  be  classified  as  follows :  1.  The 
use  of  water  for  mining  purposes  on  government  land,  giving 
rise  to  a  peculiar  phase  of  the  development  of  the  law,  which 
terminated  at  the  close  of  the  Civil  War  and  with  the  passage 
of  the  act  of  Congress  in  1866,  presently  to  be  described;  2.  The 
use  of  water  for  the  irrigation  of  land,  and  its  diversion  from 
streams  on  land  in  private  ownership ;  3.  The  extraction  and  use 
of  the  subterranean  supplies  of  water.  Another  uese  has  recently 
begun;  the  inipounding  of  water  in  reservoirs  for  the  double  pur- 
pose of  producing  electrical  energy  and  conserving  the  run-off 
during  the  rainy  season  and  while  the  mountain  snows  are 
melting,  for  use  in  irrigation  after  it  has  passed  through  the 
power  plants.  The  law  with  regard  to  this  use,  in  so  far  as  it 
may  require  any  modification  of  settled  rules,  is  now  in  process 
of  development  and  it  does  not  come  within  the  scope  of  a  paper 
devoted  to  the  past.  The  first  subject  to  be  discussed,  therefore, 
is  the  law  regarding  the  use  of  water  in  the  mining  regions 
during  the  first  sixteen  years  after  the  settlement  of  the  state  in 
1849. 

No  more  spectacular  migration  of  human  beings  was  ever 
known  in  history  than  that  of  1849  from  all  parts  of  the  world 
to  the  gold-bearing  lands  of  California.  They  came  from 
everywhere,  but  chiefly  from  the  eastern  part  of  the  ITnited 
States.  They  found  a  country  different  in  topography,  and  in 
elimatic  conditions,  from  those  from  which  they  came.  All 
were  seeking  gold.  The  only  method  of  obtaining  it  that  was 
feasible,  under  the  existing  circumstances,  was  that  known  as 
placer  mining.  The  miners  began  to  arrive  in  the  summer  of 
1849,  and  they  found  the  streams  very  low,  many  of  them  dry. 
It  was  only  where  streams  were  flowing  that  they  were  able 
to  obtain  any  satisfactory  results  from  their  operations.  As 
their  numbers  increased  from  year  to  year,  the  demand  for 


LUOIBN   SHAW.  191 

ruiming  water  in  the  mining  regions  became  very  great.  Bights 
to  take  water  from  the  streams  soon  became  very  valuable. 
Naturally  disputes  arose  concerning  such  rights. 

The  conditions  were  novel  to  these  people.  There  seemed  to 
be  no  owner  of  the  land.  It  belonged  to  the  United  States^  but 
the  national  government  had  not  even  surveyed  it  aad  had  no 
persons  in  actual  control  of  it.  It  was  all  unoccupied.  There 
was  no  known  law  to  govern  the  rights  of  the  persons  desiring 
to  extract  the  gold  from  the  land  and  use  the  water  for  that 
purpose.  There. was  no  government,  no  law  and  no  authority. 
In  these  circumstances  the  early  adventurers  had  to  form  their 
own  government  and  frame  and  enforce  their  own  laws  in  such 
rude  fashion  as  the  conditions  permitted. 

Those  who  had  come  from  the  eastern  part  of  the  United  States 
were  in  such  numbers  that  they  dominated  the  situation.  Be- 
longing to  the  Anglo-Saxon  race,  being  accustomed  to  conditions 
where  law  and  order  prevailed,  and  finding  themselves  in  a 
r^on  previously  uninhabited  and  without  any  government,  they 
followed  their  natural  habits,  inclinations  and  intuitions,  and 
immediately  sought  to  make  local  regulations  for  the  preserva- 
tion of  law  and  order  and  for  the  protection  of  such  rights  as 
were  generally  recognized,  until  a  provisional  government  should 
be  provided  by  the  United  States.  Mining  districts  were  formed 
and  in  each  of  them  mining  rules  were  adopted  at  meetings  of 
the  inhabitants  of  the  territory  included  in  the  district.  These 
rules  were  generally  accepted  as  law  and  were  enforced  by  such 
informal  tribunals  as  the  inhabitants  instituted  under  the  ex- 
igencies of  each. particular  occasion.  The  regulations  were  not 
precisely  the  same  in  all  districts.  Either  the  different  topog- 
raphy or  the  different  ideas  of  the  inhabitants  of  the  several 
districts  caused  somewhat  different  rules  to  be  adopted  and 
established  in  different  places.  Practically  no  attention  what- 
ever was  given  to  the  subject  of  the  real  ownership  of  the  land 
on  which  the  miners  settled.  No  person  appeared  to  claim 
ownership.  If  the  roving  tribes  of  Indians  found  in  the  country 
had  any  sort  of  possession  or  claim,  the  miners  gave  it  no 
thought,  and  they  were  wholly  disregarded.  The  rights  of  the 
miners  were  those  of  the  possessor,  only,  and  such  possession 

7 


192  LAW   OF  WATERS  IN  THE  WEST. 

was  the  sole  foundation  and  evidence  of  their  title  to  the  land 
they  occupied,  to  the  water  they  used  in  mining,  and  to  the 
gold  which  they  obtained  thereby. 

The  influx  of  population  was  very  rapid.  According  to  Mr. 
Hittell  the  persons  arriving  during  the  year  1849  numbered  one 
hundred  thousand.  He  justly  adds  that  a  large  majority  of 
them  ''were  Americans,  trained  in  American  schools,  imbued 
with  American  principles  and  included  some  of  the  choicest 
spirits  from  every  section  of  the  United  States.^'*  It  soon 
became  evident  that  a  local  government  of  the  territory  should 
be  organized.  General  Bennet  Eiley  had  been  appointed  pro- 
visional governor  by  the  President  of  the  United  States.  In 
pursuance  of  a  proclamation  issued  by  him  a  convention  to 
organize  a  state  government  met  and  prepared  a  constitution 
which  was  ratified  by  popular  vote  on  November  13,  1849.  The 
actual  admission  into  the  union  did  not  take  place  until  Septem- 
ber 9,  1850,  but  the  new  state  government,  without  awaiting 
federal  authority,  immediately  upon  the  adoption  of  the  consti- 
tution, organized  and  took  control  of  local  governmental  affairs. 
No  territorial  government  was  ever  formed  for  California.  The 
judicial  department  provided  by  the  constitution  included  a 
supreme  court  consisting  of  a  chief  justice  and  two  associate 
justices,  all  to  be  elected  by  the  people  for  a  term  of  six  years. 
The  legislature  was  empowered  at  its  first  meeting  to  elect  the 
justices  of  the  court  and  classify  them  so  that  one  should  go  out 
of  oflSce  every  two  years.  Under  this  authority  justices  were 
elected  on  December  22,  1849,  and  they  organized  as  a  court  in 
March,  1850. 

Prior  to  the  treaty  with  Mexico  in  1848,  property  rights  were 
governed  by  Mexican  law.  After  that  treaty  and  until  Cali- 
fornia was  admitted  into  the  union,  the  law  of  Mexico  continued 
in  force  with  respect  to  private  rights  of  property,  except  in  so 
far  as  it  was  changed  by  the  public  authorities  of  this  country.' 
The  first  volume  of  our  reported  cases  contains  many  decisions 
applying  the  Mexican  law  to  past  transactions.  On  April  13, 
1850,  the  legislature  enacted  a  law  declaring  that  the  common 

*  2  Hittell's  Hist,  of  Cal.,  p.  700. 

'People  vs.  Folsom,  5  Cal.  379;  Wells  vs.  Stout,  9  Cal.  494. 


LUOIBN  SHAW^  193 

law  of  England,  so  fax  as  it  was  in  harmony  with  the  state  and 
federal  constitutions,  should  be  the  rule  of  decision  in  this 
state. 

The  Supreme  Court  was  thereupon  confronted  with  the  prob- 
lem of  determining  the  rights  of  contending  parties  to  the  use 
of  the  waters  of  the  streams  in  a  coimtry  which  had  been 
previously  subject  to  the  almost  imknown  law  of  Mexico  and 
which  had  suddenly  been  transformed  into  a  country  governed 
by  the  common  law,  where  the  real  owner  of  the  land  was  for  all 
practical  purposes  absent  and  indifferent,  where  the  people  had 
come  from  different  countries  and  were  strange  to  the  land,  the 
climate  and  to  each  other,  and  where  the  principal  source  of  liti- 
gation in  regard  to  the  use  of  water  was  the  conflicting  claims 
of  miners  to  the  waters  they  were  diverting,  or  claiming  the  right 
to  divert,  from  the  streams  adjacent  to  or  near  their  mining 
claims. 

The  common  law  of  England  included  the  doctrine  of  riparian 
rights;  a  doctrine  naturally  growing  out  of  the  well-known 
principles  of  that  law  as  to  the  right  of  private  property  in 
land  owned  in  fee  simple.  An  entry  on  land  without  permission 
of  such  owner,  whatever  the  motive  or  purpose,  was  a  trespass  at 
common  law,  and  the  owner  had  the  right  to  prevent  it  by  such 
force  as  was  necessary  to  accomplish  that  purpose.  Conse- 
quently, except  with  respect  to  navigable  streams,  the  several 
owners  of  the  lands  bordering  upon  the  streams  were,  under  that 
law,  the  only  persons  who  could  have  or  enjoy  the  use  of  the 
water  rimning  therein,  or  claim  any  right  thereto,  for  no  other 
person  could  have  access  to  the  stream  either  to  take  or  use  the 
water.  These  rules  automatically  protected  the  abutting  owners 
in  the  exclusive  right  to  the  use  of  the  water,  and  they  are  the 
foundation  of  the  riparian  right.  But  in  this  strange  country 
the  owner  of  the  land,  apparently  by  design,  remained  absent 
and  refrained  from  interfering  with  the  possession  of  the  land 
by  the  miners,  or  with  the  use  of  the  waters  thereof.  The 
disputes  were  all  raised  by  persons  who  had  no  real  ownership 
in  the  water  which  they  were  using,  and  of  which,  by  virtue 
of  that  use,  they  claimed  to  be  in  possession,  and  the  real  owner 
was  not  brought  into  the  controversy.  The  problem  of  the 
court  was  therefore  directed  mainly  to  the  best  and  most  appro- 


194  LAW  OP  WATERS  IN  THE.  WEST. 

priate  application  of  the  general  principles  of  the  common  law  to 
the  anomalous  conditions  existing  in  the  mining  r^ons,  con- 
ditions wholly  unknown  in  the  countries  in  which,  up  to  that  time, 
the  common  law  had  been  administered.  There  were  no  specific 
common  law  rules  that  had  ever  been  applied  in  those  countries 
to  the  peculiar  conditions  and  controversies  existing  and  arising 
in  the  mining  regions  of  California,  and  the  only  recourse  was  to 
its  general  principles  relating  to  possessory  rights. 

The  right  of  a  person  who  did  own  land  on  a  stream,  to 
divert  water  therefrom  for  use  on  non-riparian  land,  had  re- 
ceived little  attention  and  satisfactory  authority  upon  that  siib- 
ject  was  wanting.  The  laws  of  Mexico  on  the  subject  were  not 
well  known  and  its  safeguards  for  the  protection  of  private 
rights,  being  derived  in  the  main  from  the  arbitrary  methods 
of  the  ancient  Spanish  rule,  were  not  adapted  to  the  habits  and 
preconceived  ideas  of  Anglo-Saxon  races.  The  rights  of  pos- 
sessors of  the  land  gave  comparatively  little  trouble.  In  the 
first  year  the  court  held  that  the  Mexican  law  and  the  com- 
mon law  alike  secured  to  one  who  was  in  peaceable  possession  of 
land  a  right  thereto  superior  to  that  of  any  mere  intruder  or 
trespasser  and  that  proof  of  such  possession  prior  to  and  at  the 
time  of  an  intrusion  thereon  was  sufficient  to  defeat  or  oust  the 
intruder.'  The  question  of  water  rights  was  naturally  more 
complex.  Three  years  passed  before  any  disputes  over  water 
reached  the  Supreme  Court.  The  first  case  on  that  subject, 
decided  in  1853,*  was  a  controversy  between  two  appropriators 
for  mining  purposes.  Neither  claimed  as  a  riparian  owner.  The 
court  nevertheless  looked  to  the  common  law  authorities  on 
riparian  rights  and  found  there  the  doctrine  that  the  riparian 
owner  had  the  right  to  the  reasonable  use  of  the  water  during  its 
passage  over  his  land,  and  no  title  to  the  corpus  of  the  water, 
and  that  he  could  not  reclaim  the  water  after  it  had  passed  his 
boundaries.  From  these  principles  it  concluded  that  where  a 
miner  diverted  water  from  one  stream  and,  after  using  it  for 
mining  purposes,  turned  it  into  another  stream,  he  thereby  lost 
all  right  to  it  and  could  not  retake  it  from  the  second  stream 

"Sunol  VB,  Hepburn,  1  Cal.  260;  Woodworth  vs.  Fulton,  1  Cal.  308; 
Brown  vs,  O'Connor,  1  Cal.  421. 
*  Eddy  V9,  Simpson,  3  Cal.  249. 


LtTOIBir  dHAW.  19S 

agamst  the  will  of  another  miner  whose  dam  waa  on  the  second 
stream  below  the  place  where  the  additional  water  waa  turned 
into  it.  This  decision  was  apparently  baaed  on  the  idea  that 
the  mert  turning  of  the  water  into  another  stream,  after  having 
once  used  it,  was  conclusive  evidence  of  abandonment^  and  that 
it  gave  one  who  had  prior  rights  to  divert  the  natural  waters 
of  the  latter  stream  a  right  to  have  that  artificial  increase 
continued  for  his  benefit.  Five  years  later  this  decision  was 
virtually  overruled  and  it  was  declared  that  the  prior  right  to  the 
use  of  the  natural  water  of  a  stream  did  not  entitle  the  person  to 
the  exclusive  use  of  the  channel,  and  that  the  bed  of  the  stream 
could  be  used  by  others  as  a  channel  for  conducting  water 
provided  that  they  took  out  below  no  more  than  the  quantity 
they  had  added  to  the  stream  above,  less  the  loss  by  evaporation 
and  seepage/    This  has  ever  since  been  the  established  law. 

The  difficulties  encountered  by  the  court  in  its  consideration 
of  these  questions  are  expressed  in  some  of  the  opinions.  Some 
of  those  expressions  are  interesting.  In  the  second  case  on  the 
subject,  decided  in  January,  1855,*  Justice  Heydenfelt  deliver- 
ing the  opinion  of  the  court,  said:  *'In  this  state  the  larger 
paxt  of  the  territory  consists  of  mineral  lands,  nearly  the  whole 
of  which  axe  the  property  of  the  public,'*  and  with  obvious  refer- 
ence to  the  rules  and  customs  of  the  miners  he  added : 

With  the  exception  of  certain  state  regulations,  very  limited  in  their 
character,  a  system  has  been  permitted  to  grow  up  by  the  voluntary 
action  and  assent  of  the  population,  whose  free  and  unrestrained  occupa- 
tion of  the  mineral  region  has  been  tacitly  assented  to  by  the  one  gov- 
ernment and  heartily  encouraged  by  the.  legislative  policy  of  the  other. 
If  there  are,  as  must  be  admitted,  many  things  connected  with  this 
system,  which  are  crude -and  undigested,  and  subject  to  fluctuation  and 
cuspute,  there  are  still  some  which  a  universal  sense  of  necessity  and 
propriety  have  so  firmly  fixed  as  that  they  have  come  to  be  lookea  upon 
as  having  the  force  and  effect  of  res  judicata. 

In  a  case  decided  two  years  later,*  Chief  Justice  Murray  said 

that  the  former  decisions  in  regard  to  the  right  to  appropriate 

water  from  streams  for  mining  purposes  *'  have  been  based  upon 

the  wants  of  the  community  and  the  peculiar  condition  of  things 

in  this  state  (for  which  there  is  no  precedent),  rather  than 

any  absolute  rule  of  law  governing  such  cases.    The  absence  of 

•Butte,  etc.  Co.  vs,  Vaughn,  11  Cal.  151;  Hoffman  vs.  Stone,  7  Cal.  46. 

*  Irwin  vs.  Phillips,  5  Cal.  146. 

*  Hoffman  vs.  Stone,  7  Cal.  48. 


196  LAW  OF  WATBfiS   IN  THE  WEST. 

legislation  has  devolyed  on  the  courts  the  necessity  of  framing 
rules  for  the  protection  of  this  great  interest^  and  in  determin- 
ing these  questions,  we  have  conformed^  as  nearly  as  possible^  to 
the  analogies  of  the  common  law/'  Later  in  the  same  y^sx,  in  a 
case  involving  the  respective  rights  of  successive  appropriators 
from  the  same  stream^  and  the  pollution  of  the  water  by  the 
upper  appropriator^  Justice  Burnett  made  a  fuller  statement 
on  the  subject  as  follows : 

It  may  be  said,  with  truth,  that  the  judiciaiy  of  this  state,  has  had 
thrown  upon  it,  responsibilities  not  incurred  by  the  courts  of  any  other 
state  in  the  union.  In  addition  to  those  perplexing  cases  that  must 
arise,  in  the  nature  of  things,  and  especially  in  putting  into  pifustical 
operation,  a  new  constitution  and  a  new  cocie  of  statutes,  we  have  had 
a  large  class  of  cases,  unknown  in  the  jurisprudence  of  our  sister  states. 
The  mining  interest  of  the  state  has  grown  up  under  the  force  of  new 
and  extraordinary  circumstances  and  in  the  absence  of  any  specific 
and  certain  legislation  to  guide  us.  Left  without  any  direct  precedent, 
as  well  as  without  specific  legislation,  we  have  been  compeUed  to  apply 
to  this  anomalous  state  of  things  the  analogies  of  the  common  law,  and 
the  more  expanded  principles  of  equitable  justice.  There  being  no 
known  ^y8tem  existing  at  the  beginning,  parties  were  left  without  anv 
certain  guide,  and  for  that  reason,  have  placed  themselves  in  such 
conflicting  positions  that  it  is  impossible  to  render  any  decision  that  will 
not  produce  great  injury,  not  only  to  the  parties  immediately  con- 
nected with  the  suit,  but  to  large  bodies  of  men,  who,  though  no 
formal  parties  to  the  record,  must  be  deeply  affected  by  the  decision. 
No  class  of  cases  can  arise  more  difficult  of  a  just  solution,  or  more 
distressing  in  practical  result.  And  the  present  is  one  of  the  most  difficult 
of  that  most  perplexing  class  of  cases.  The  business  of  gold-mining 
was  not  only  new  to  our  people;  and  the  cases  arising  from  it,  new  to 
our  courts,  and  without  judicial  or  legislative  precedent,  either  in  our 
own  country  or  in  that  from  which  we  nave  borrowed  our  jurisprudence; 
but  there  are  intrinsic  difficulties  in  the  subject  itself,  that  it  is  almost 
impossible  to  settle  satisfactorily,  even  by  the  application  to  them  of 
the  abstract  principles  of  justice.  Yet  we  are  compelled  to  decide  these 
cases,  because  they  must  be  settled  in  some  way,  whether  we  can  say 
after  it  is  done,  that  we  have  given  a  just  decision  or  not.* 

The  decision  was  that  the  incidental  pollution  of  the  water  by 
the  upper  appropriator  in  his  mining  operations,  to  the  detri- 
ment of  the  lower,  one  was  not  an  actionable  injury.  In  the 
case  next  following  it  in  that  volume  of  the  reports,  the  decision 
was  overruled  on  this  point,  and  Justice  Burnett,  in  concurring 
therein,  stated  that  the  opinion  in  the  first  case  ^'  should  receive 
some  qualification/'  * 

During  the  period  preceding  the  year  1866  large  diversions  of 
water  had  been  made  from  the  streams  of  the  mining  regions  in 

•  Bear  River  Co.  vs,  York  Mining  Co.,  8  Cal.  332. 
'  Hill  V8,  King,  8  Cal.  338. 


LUCIBN  SHAW.  197 

this  state,  canals  many  miles  in  length  had  been  constructed  to 
carry  the  water  to  the  place  of  use  or  to  sell  it  to  the  miners 
along  its  course^  great  sums  of  money  had  been  invested  and 
property  had  been  acquired  which  was  of  great  value,  if  the  pos- 
sessors had  a. valid  title  thereto.  This  was  done  in  reliance  upon 
the  general  understanding  of  all  concerned  that  the  United 
States,  as  the  owner  of  the  land,  acquiesced  in  these  uses  of  its 
property  and  would  not  interfere  to  take  it  away  from  those 
who  had  thus  occupied,  developed  and  improved  it,  or  deprive 
them  of  the  products  of  their  efforts.  As  a  result  of  the  labors 
of  the  courts  under  the  difficult  conditions  just  referred  to  a 
system  of  law  had  been  established  and  waa  being  administered, 
whereby  the  rights  of  appropriators  of  water  from  the  streams 
on  the  public  land,  as  between  claimants  not  in  privity  with  the 
riparian  owner,  were  considered  and  determined  in  a  reasonably 
satisfactory  manner. 

The  principles  so  established  during  this  period  may  be  stated 
generally  as  follows :  The  waters  of  these  streams  on  the  public 
lands  of  the  United  States  were  all  subject  to  appropriation  at 
any  time  by  any  person  who  proposed  to  devote  the  water  so 
taken  to  a  beneficial  use.  The  miJdng  of  a  diversion  with  such 
intent  and  for  such  purpose  would  vest  in  the  diverter,  at 
once,  the  right  to  use  the  water.  No  length  of  time  of  such  use 
was  essential  to  the  acquisition  of  the  right.  The  water  was 
treated  as  property  having  no  owner.  The  rights  of  the  United 
States  as  riparian  owner  of  the  abutting  lands  were  completely 
ignored.  With  respect  to  contending  appropriators  of\water 
from  the  same  stream,  he  who  was  first  in  time  was  considered 
superior  in  right.  Such  right  vested  by  relation  aa  of  the  time 
when  the  appropriator  began  the  actual  work  of  constructing  his 
diversion  works  and  ditch  for  that  purpose,  provided  the  work 
was  done  in  such  a  manner  as  to  be  visible  and  to  manifest  to 
others  his  intent  and  purpose  to  prosecute  the  work  to  com- 
pletion," and  provided  further,  that  he  did  so  and  actually  took 
and  used  the  water.  The  right  so  obtained  was  a  right  to  only 
so  much  of  the  water  as  was  beneficially  used.  The  owner  of 
such  right  was  entitled  at  any  time  to  change  the  place  of 

"Kelly  vs.  Natoma  W.  Co.,  6  Cal.  105;  Kimball  vs,  Gearhart,  12 
Cal.  27. 


IBS  LAW   OF   WATERS   IN   THE  WEST. 

diversion  or  the  place  of  use,  if  the  rights  of  others  were  not 
impaired  thereby.  These  principles  have  not  been  changed  by 
subsequent  decisions. 

The  existence  of  riparian  rights  was  recognized  by  the  court 
in  a  few  cases  where  a  reference  thereto  seemed  appropriate,  or 
where  the  law  on  that  subject  illustrated  the  particular  case; 
but  no  case  had  arisen  in  which  that  law  was  considered  as  ina- 
portant  to  the  decision." 

The  titles  to  all  this  valuable  property  were  not  settled  by 
the  decisions  of  the  state  court.  No  statute  of  limitations  would 
run  against  the  United  States,  nor  could  title  by  prescription  be 
acquired  against  it  by  any  period  of  adverse  possession.  The 
large  interests  in  property  of  this  character  would  have  been  in 
great  jeopardy,  if  the  federal  government  had  chosen  a  policy 
of  hostility  to  the  taking  of  gold  from  its  lands  such  as  has 
since  been  manifested  with  respect  to  the  taking  of  coal  and  oil. 
Fortunately  for  the  miners,  and  for  the  development  and  pro- 
gress of  the  State  of  California,  a  diflerent  policy  was  adopted. 
On  July  26,  1866,  Congress  enacted  a  law  recognizing  the 
possession  of  the  miners  as  lawful,  virtually  acquiescing  in  the 
previous  extraction  of  gold  from  the  lands  of  the  United  States, 
and,  so  far  as  thes6  lands  and  the  United  States  were  concerned, 
sanctioning  and  declaring  lawful  the  claims  to  water  rights  then 
acquired  or  thereafter  to  be  acquired  in  the  streams  on  the 
public  lands,  provided  such  claims  were  of  a  character  which 
had  been  ^'recognized  and  acknowledged  by  the  local  customs, 
laws,  and  the  decisions  of  the  courts.^^ "  By  the  supplementary 
act  of  July  9,  1870,  it  was  provided  that  all  homestead  and 
preemption  claims,  and  all  patents  granted  for  public  land^ 
should  be  subject  to  rights  then  or  thereafter  acquired  as  speci- 
fied in  the  act  of  1866." 

By  these  acts  all  conflict  between  the  claimants  of  water 
under  appropriation  from  streams  on  the  public  land  and  the 
United  States  as  owner  of  the  land  bordering  on  the  streams, 
was  eliminated  and  terminated,  and  the  danger  of  interference 
with  such  rights  by  the  federal  government  was  removed. 

"Crandall  v«.  Woods,  8  Cal.  141;  Leigh  vs.  Independent  D.  Co.,  8 
Cal.  323. 
"  16  U.  S.  Stats.  218,  Sec.  17. 
"  16  U.  S.  Stats.  218,  Sec.  17. 


LUCIEN   SHAW.  199 

These  acts  mark  the  termination  of  the  first  stage  of  the 
development  of  water  law  in  California.  The  law  as  then  estab- 
lished related  almost  entirely  to  the  use  of  water  taken  from 
streams  on  the  public  domain  for  mining  purposes.  The  use  of 
water  for  irrigation  was  of  little  importance  in  the  mining 
regions.  The  value  of  the  alluyial  soils  in  the  large  and  com- 
paratively level  valleys  of  the  state  for  agricultural  purposes 
was  then  just  beginning  to  be  realized.  They  had  been  gener- 
ally supposed  to  be  valuable  only  for  grazing  and  a  little  later 
only  for  grain  farming.  In  a  few  places  vineyards  had  been 
planted  to  grow  grapes  for  making  wine,  and  in  southern 
California  irrigation  had  been  practiced  to  a  limited  extent  for 
growing  fruit.  There  had  been  enough  water  for  the  small  needs 
of  this  character,  and  the  relative  rights  thereto  of  the  riparian 
owner  and  the  appropriator  for  use  on  other  lands  had  not  as 
yet  become  important. 

About  .this  time  a  class  of  immigrants  began  to  arrive  who  in- 
tended to  engage  in  agriculture.  In  a  few  years  the  value  of 
water  for  irrigation,  and  the  necessity  of  irrigation  for  the 
production  of  anything  except  grain  became  manifest,  especially 
in  the  San  Joaquin  Valley,  and  in  southern  California,  Henry 
Miller  and  his  partner  Lux,  known  as  Miller  &  Lux,  had 
acquired  large  bodies  of  land  in  Kern  County  in  the  San  Joaquin 
Valley.  James  B.  Haggin  and  Lloyd  Tevis  had  also  acquired  a 
large  area  of  land  in  that  county.  Haggin  and  Tevis  began  to 
construct  canals  for  taking  out  the  water  of  Kern  River  to 
irrigate  lands  not  riparian  thereto.  The  lands  of  Miller  &  Lux 
were  lower  down  and  bordered  on  the  stream  or  on  sloughs 
diverging  from  it,  and  the  diversions  of  Haggin  and  Tevis 
diminished  the  flow  of  the  water  of  the  stream  to  the  Miller  & 
Lux  lands,  on  which  they  had  begun  to  use  it  to  irrigate  their 
lands  for  alfalfa  and  other  crops.  Along  Elings  River,  the  next 
important  stream  emerging  from  the  mountains  north  of  the 
Kern,  large  canals  were  made  and  water  diverted  therein  to 
non-riparian  lands  for  irrigation,  and  colonies  of  fruit  farmers 
had  been  established  along  the  canals.  The  course  of  the 
decisions  above  mentioned  in  regard  to  the  rights  of  appro- 
priators,  and  the  long  continued  practice  in  the  mining  regions 
of  diverting  water  from  the  streams  without  asking  leave  from 


200  LAW  OP  WATERS  IN  THE  WEST. 

the  riparian  owner,  had  accustomed  the  people  to  the  notion  that 
riparian  rights  were  not  important,  and  the  idea  had  become 
prevalent  that  they  were  not  suited  to  our  conditions  and  had 
therefore  ceased  to  exist.  The  Civil  Code,  enacted  in  1872,  in  a 
chapter  on  that  subject,  had  codified  some  of  the  rules  of  law 
previously  established,  regulating  the  right  to  appropriate  the 
water  of  running  streams.^  The  last  section  of  the  chapter 
recognized  the  existence  of  riparian  rights  by  the  declaration  that 
''the  rights  of  riparian  proprietors  are  not  affected  by  the 
provisions  of  this  title.''  Litigation  between  the  riparian  owners 
and  the  appropriators  had  begun  in  the  coimties  of  Tulare  and 
Fresno,  over  the  waters  of  Kings  River,  and  in  the  county  of 
Kern  between  Haggin  and  Tevis  and  others,  claiming  as  ap- 
propriators, and  Miller  &  Lux,  with  others,  claiming  as  riparian 
owners.  The  action  between  the  last  mentioned  parties  was 
begun  in  the  year  1879,"  and  the  other  actions  soon  afterward. 
The  importance  of  the  question,  the  very  large  interests  in- 
volved, and  the  growing  demand  for  water,  soon  caused  the 
controversy  to  develop  into  a  political  contest.  The  great  wealth 
of  the  parties  to  the  action  in  Kern  County  had  tiie  effect  of 
centering  the  political  discussion  upon  that  case.  The  discovery 
that  Section  1422  of  the  Civil  Code  apparently  purported  to 
preserve  the  existing  but  almost  forgotten  riparian  rights,  direc- 
ted the  main  political  attack  to  the  repeal  of  that  section. 
Shortly  before  the  beginning  of  the  political  campaign  of  1884, 
the  case  of  Lux  V8,  Haggin  in  Kern  County  was  decided  by  the 
Superior  Court  of  that  county  in  favor  of  the  appropriators, 
Haggin  and  Tevis.  Both  of  the  contending  parties  doubtless 
believed  that  the  political  aspect  of  the  case  was  important, 
and  others  throughout  the  state,  especially  in  other  parts  of  the 
San  Joaquin  Valley  and  in  southern  California,  were  soon 
advised  of  it.  The  litigants  perhaps  hoped  that  the  political 
agitation  might  influence  the  decision  of  the  Supreme  Court, 
where  the  case  was  then  pending  on  appeal.  Public-  sentiment, 
so  far  as  it  found  expression  in  1884,  was  entirely  in  favor 
of  the  appropriators.  Conventions  were  held  and  resolutions 
adopted  condemning  the  doctrine  of  riparian  rights  and  Section 

»*  Part  IV,  Title  VHI,  Sees.  1410-1422. 

"*  Title  Ins.  Co.  vs.  Miller  &  Lux,  183  Cal.  74. 


LUOIBN   SHAW.  201 

1422.  The  discuesionB  in  general  indicated  that^  in  the  usual 
superficial  method  of  reaching  conclusions,  the  people  believed 
that  the  sole  foundation  of  the  riparian  right  was  the  enact- 
ment of  that  section.  An  urgent  demand  was  made  to  elect 
members  of  the  legislature  pledged  to  repeal  it.  The  more 
absorbing  interest  of  the  people  in  the  Presidential  election  of 
that  year  probably  frustrated  that  effort.  At  all  events,  the 
legislators  then  elected,  although  pressed  to  act  in  the  matter, 
failed  to  do  so  and  Section  1422  remained  on  the  statute  books. 
The  decision  of  the  Supreme  Court  in  the  case  of  Lux  vs. 
Haggin  was  rendered  on  April  26,  1886.^  There  had  been 
several  previous  decisions  in  which  the  existence  of  riparian 
rights  had  been  declared  and  in  which  such  rights  had  been 
enforced/^  but  there  had  been  no  serious  dispute  on  the  subject, 
the  cases  had  not  attracted  public  attention,  and  it  was  not 
believed  that  the  court  would  adhere  to  the  previous  rulings 
on  the  principle  of  stare  decisis,  especially  in  view  of  the  general 
discussion  of  the  subject  in  1884.  Probably  no  case  ever  came 
before  the  Supreme  Court  of  California  that  was  more  fully 
argued  or  in  which  counsel  of  greater  ability  were  engaged  on 
the  respective  sides.  The  opinion  was  exceedingly  exhaustive, 
covering  176  pages  of  the  printed  report.  It  is  the  longest 
opinion  to  be  found  in  the  decisions  of  our  Supreme  Court,  and 
it  elaborately  treated  every  phase  of  the  subject.  It  declared 
that  the  rights  of  the  riparian  owners  to  the  use  of  the  waters 
of  the  abutting  stream  were  paramoimt  to  the  rights  of  any  other 
persons  thereto;  that  such  rights  were  parcel  of  the  land  and 
that  any  diminution  of  the  stream  against  the  will  of  the 
riparian  owner  by  other  persons  was  an  actionable  injury.  The 
question  was  settled  by  that  case  and  the  riparian  rights  has 
never  since  been  disputed. 

If  the  doctrine  of  the  riparian  right  had  been  strictly  enforced 
in  all  cases  by  the  abutting  land  owners,  it  is  obvious  that  it 
would  have  prevented  all  use  of  the  waters  of  streams  passing 
through  lands  in  private  ownership,  or  any  non-riparian  land. 

The  rightful  use  of  such  waters  on  non-riparian  land  would  have 

f 

"69  Cal.  263  to  439. 

'^Creiditon  vs.  Evans,  53  Cal.  55;  Osgood  vs.  El  Dorado  W.  Mining 
Co.,  56  Cal.  574;  Zimmler  vs.  San  Luis  W.  Co.,  57  Cal.  221;  St.  Helena 
W.  Co.  vs.  Forbes,  62  Cal.  182. 


202  LAW  OP  WATERS   IN  THB  WEST, 

been  impossible^  for  such  land  owners  could  not  lawfully  take 
out  the  water  without  infringing  upon  the  right  of  every  ripa^ 
rian  owner  along  the  stream  to  have  the  water  flow  as  it  was 
accustomed  to  flow.  The  opponents  of  the  doctrine  of  riparian 
rights  had  pointed  out  these  results  with  much  emphasis  and 
repetition  in  the  political  campaigns  prior  to  the  decision  in 
Lux  vs.  Haggin,  and  they  are  still  referred  to  as  evidence  that 
the  doctrine  is  contrary  to  a  sound  public  policy  in  states  having 
the  arid  climate  of  Galifomia.  The  obvious  answer  on  the  ques- 
tion of  policy  is  that  the  objection  cox^es  too  late^  that  it  should 
have  been  made  to  the  legislature  in  1850,  prior  to  the  enactment 
of  the  statute  adopting  the  common  law.  When  that  was  done, 
the  riparian  rights  became  vested^  and  thereupon  the  much  more 
important  public  policy  of  protecting  the  right  of  private 
property,  because  paramount  and  controlling.  This  policy  is 
declared  in  our  constitutions,  has  been  adhered  to  throughout 
our  national  history,  and  it  is  through  it  that  the  remarkable 
progress  and  development  of  the  country  has  been  made  possible. 
Notwithstanding  the  existence  of  these  vested  rights,  there 
has  been  a  very  general  use  of  water  on  non-riparian  land. 
This  has  been  made  possible  by  several  causes.  The  most 
important  and  effective  cause  of  a  legal  nature  is  the  common 
law  rule,  now  expressed  in  Section  1007  of  the  Civil  Code,  tfa^ 
a  title  by  prescription,  good  against  all  owners  of  private 
property,  may  be  acquired  by  adverse  occupancy  for  the  period 
of  limitation  which  in  this  state  has  been  flve  years.  -Other 
causes  arise  from  natural  conditions.  Any  person  who  does  not 
own  land  on  a  stream  may  obtain  access  to  the  water  thereof  by 
purchasing  the  right  to  do  so  from  the  owner  of  any  parcel  of 
riparjan  land.  Usually  the  banks  of  the  larger  streams  are  so 
high  that  the  owner  of  a  small  tract  cannot  bring  the  water  upon 
his  land,  except  by  a  diversion  on  land  above  him,  to  whidi  of 
course  he  must  have  the  consent  of  the  owner  thereof.  Such 
owners  frequently  made  little  use  of  the  water  for  irrigation  and 
were  indifferent  to  Iheir  riparian  rights  therein.  Hence  they 
usually  made  no  objection  to  a  diversion  therefrom  until  five 
years  had  elapsed.  The  large  diversions,  almost  without  excep- 
tion^ have  been  made  near  the  point  of  emergence  of  the  streams 
from  the  mountains,  where  land  had  little  value  for  any  purpose. 


L0OIBK  SHAW.  203 

and  where  the  diversion  would  have  little  effect  on  the  land  near 
by  and  were  so  far  from  the  land  seriously  affected  thereby  that 
they  provoked  no  immediate  opposition.  In  these  ways  and  for 
these  reasons,  innumerable  prescriptive  rights  to  the  use  of  the 
water  of  streams  have  been  acquired  from  the  riparian  owners  of 
private  land,  either  without  objection,  or  by  successful  litiga- 
tion. As  a  net  result  the  irrigated  land  in  the  state  is  almost  all 
non-riparian>  and  the  existence  of  the  riparian  right  has  not 
prevented  the  beneficial  use  of  the  greater  part  of  the  waters 
of  the  streams. 

The  dedsicms  of  water  suits  for  many  years  following  the  case 
of  Lux  V8.  Haggin  have  dealt,  for  the  most  part,  with  the  law 
of  adverse  possession,  the  interpretation  and  application  of  the 
aforesaid  chapter  of  the  Civil  C!ode,  the  application  of  the 
principles  of  these  laws  to  the  particular  facts  presented  in  each 
case,  and  to  definitions  of  the  distinctions  between  the  rights  of 
riparian  owners  and  the  rights  of  persons  claiming  only  by  ap- 
propriation and  use.  Many  rules  of  more  or  less  importance  on 
these  subjects  have  been  established,  but  they  do  not  essentially 
differ  from  the  generally  prevailing  law  on  the  subject  and  a 
discussion  of  them  is  unnecessary. 

I  now  come  to  the  third  branch  of  my  subject ;  the  law  relating 
to  underground  waters. 

This  question  first  became  important  in  southern  California, 
by  which  I  mean  the  region  south  of  the  Tehachipi  range  of 
mountains.  The  influx  of  population  and  the  demand  for 
water  for  irrigation  of  orchards  in  that  part  of  the  state  began 
to  exhaust  the  supply  from  the  surface  streams  more  than 
thirty  years  ago  and  large  areas  of  fertile  land  still  remained 
barren  for  want  of  water.  That  country,  and  in  fact  all  of  Cali- 
fornia, is  interspersed  with  places  which  the  Spanish  call  cien- 
egas,  where  in  the  rainy  season  of  ordinary  years,  and  all  the 
year  round  in  some  of  them  during  years  of  heavy  rainfall,  the 
surface  of  the  ground  has  the  appearance  of  a  swamp.  These  are 
in  reality  ancient  lakes  which  in  the  course  of  ages  have  been 
filled  with  the  sand,  soil,  gravel  and  boulders  that  have  been 
carried  into  them  by  the  mountain  torrents,  or  perhaps  in  some 
cases  by  glacial  action.  The  loose  material  of  which  they  are 
composed  is  usually  of  great  depth  and  is  saturated  with  water. 


304  LAW   OF   WATERS   IN   THE  WEST. 

They  are  natural  reservoirs  of  water.  'The  surface  streams  flow 
oyer  deep  beds  of  similar  material,  permeated  with  water  from 
the  bottom  to  the  level  of  the  surface  of  the  stream,  and  this 
body  of  underground  water,  in  such  cases^  supports  the  stream 
and  is  necessary  to  its  existence.  From  these  sources  it  was 
possible  to  obtain  a  large  addition  to  the  supply  of  water.  When 
the  average  amount  pumped  out  of  the  ground  does  not  exceed 
the  amount  added  to  it  by  the  average  annual  rainfall,  such 
supply  is  steady  and  reliable.  If  it  is  taken  from  one  of  the 
underground  reservoirs  from  which  no  surface  stream  issued 
there  is  no  limit  to  the  amount  that  could  be  pumped,  except 
that  it  must  not  exceed  the  average  supply  from  rainfall.  But 
if  it  were  taken  from  the  undergroimd  water  supporting  a 
stream,  it  would  inevitably  diminish  the  flow  of  the  stream,  to 
the  detriment  of  those  entitled  to  its  use. 

The  shortage  of  water  and  the  increasing  demand  soon  induced 
the  use  of  piunps  to  obtain  from  these  sources  an  additional 
supply.  At  first  this  was  done  in  a  small  way  with  pumps  driven 
by  windmills.  The  perfection  of  the  gasoline  engine  and  later 
the  development  of  electric  power,  made  it  possible  to  obtain  a 
large  supply  with  sufficient  economy  of  operation  to  make  it 
practicable. 

The  subterranean  strata  in  which  these  waters  lie  are  com- 
posed chiefly  of  sand  and  gravel  in  which  the  water  moves 
freely  from  place  to  place  when  impelled  by  the  force  of  gravity. 
Consequently,  if  water  is  pumped  from  a  well  in  such  a  stratum, 
a  flow  from  the  adjacent  parts  would  set  in  at  once  to  fill  the 
voids  thus  created.  Pumping  from  one  well  would  sometimes 
materially  lower  the  water  level  in  another  well  a  mile  distant. 
In  some  places  the  water  in  these  underground  strata  came  from 
higher  levels  in  a  layer  of  sand  and  gravel  overlaid  by  a  striatum 
of  impervious  material,  thus  creating  a  pressure  which  forced  the 
water  to  the  surface  when  the  dense  covering  layer  was  pierced 
by  a  well,  and  by  that  means  artesian  wells  would  be  produced. 
The  flow  from  these  wells  would  cease  if  too  many  wells  were 
opened  to  the  same  source. 

It  is  not  difficult  to  perceive  that  these  conditions  would 
naturally  cause  conflicts  of  interest  in  this  water  supply  and 
thus  engender  litigation.     The  first  case  of  importance  that 


LUOIBN  SHAW.  205 

arose  concerned  the  preserration  of  the  flow  of  water  in  the 
Los  Angeles  Biver^  which  then  constituted  the  sole  source  of 
supply  of  the  City  of  Los  Angeles  for  the  uses  of  its  inhabitants. 
A  private  company  proposed  to  construct  tunnels  and  filtration 
galleries  in  what  is  practically  the  bed  of  that  river,  the  effect 
of  which  would  be  that,  without  directly  touching  the  surface 
stream  or  tunnelling  immediately  under  it,  the  water  composing 
the  stream  would  seep  through  the  sand  and  gravel  into  the 
tunnels  and  the  stream  would  in  that  manner  be  wholly  diverted 
into  the  tunnels.  The  process  was  enjoined  by  the  Superior 
Court.  The  matter  was  settled  and  that  case  did  not  reach  the 
Supreme  Court.  The  same  question,  however,  came  up  in  a 
later  case  between  the  dty  and  other  parties  and  the  Supreme 
Court  decided  that,  under  the  grant  to  the  ancient  pueblo  of 
Los  Angeles  to  which  the  present  city  had  succeeded,"  the 
right  of  the  city  to  the  water  of  the  river  was  paramount  to  that 
of  the  owners  of  the  riparian  land  along  its  course,  and  that 
the  owner  of  such  land  could  not  lawfully  diminish  the  flow  of 
the  stream  by  means  of  excavations  in  the  land  adjacent  thereto, 
although  the  water  was  not  taken  directly  from  the  stream,  but 
seeped  through  the  loose  formation  of  sand  and  gravel  into  the 
excavations."  This  rule  has  been  followed  ever  since  in  all 
cases  where  persons  having  rights  in  a  natural  stream  were 
threatened  with  injury  by  the  extraction  of  the  percolating 
water  which  sustained  and  supported  the  stream  in  its  flow." 

The  rights  to  underground  waters  in  the  land  of  different 
owners  situated  over  an  ancient  lake  or  basin  also  became  a 
source  of  controversy  because  the  pumping  of  large  quantities 
of  water  from  one  well  lowered  the  water  level  in  other  wells  in 
the  same  basin.  The  subject  first  came  before  the  court  in  the 
year  1902.  The  question  had  been  growing  in  importance  for 
several  years  before  that  date.  When  the  decision  was  first 
rendered  in  November,  1902,  it  attracted  the  attention  of  many 
other  interested  parties.  A  rehearing  was  granted  for  the  pur- 
pose of  allowing  further  discussion  by  others  having  larger  in- 
terests at  stake.     Many  additional  briefs  were  filed  and  the 

*■  Vemon  Lt.  Co.  V8.  Lob  Angeles,  106  Cal.  237. 
^Lo6  Angeles  vs,  Pomeroy,  124  Cal.  621. 

"  McClintock  V8.  Hudson,  141  Cal.  621 ;  Verdugo  vs.  Verdugo,  152  Cal. 
663;  Huffner  vs,  Sawday,  153  Cal.  93. 


206  LAW  OP  WATBR8  IN  THB  WEST. 

final  dedBion  was  not  made  until  November^  1903.  The  preyiotiB 
opinion  was  adhered  to  and  approved  and  a  supplemental  opinion 
was  rendered  giving  additional  reasons  for  the  conclusion 
reached." 

As  the  doctrine  of  the  case  is  now  regarded  as  settled,  a 
statement  of  it  may  be  of  interest.  The  rights  of  the  owners 
of  different  parcels  of  land  situated  over  a  water  supply  of  that 
character^  with  respect  to  each  other,  and  with  respect  to  the  use 
of  the  water  on  the  overlying  land,  are  mutual  and  reciprocal. 
They  are  regarded  as  persons  having  different  interests  in  a 
common  estate  in  such  waters.  Each  is  entitled  only  to  a 
reasonable  use  of  such  water  on  such  land  and  may  take  no 
more  than  his  reasonable  share  for  that  purpose.  None  of 
them  can  rightfully  take  the  water  and  export  it  from  the 
basin  for  use  on  lands  not  situated  over  the  common  water 
bearing  stratum,  if  such  taking  injures  the  owners  of  other 
parcels  of  the  overlying  lands.  In  short,  the  lawful  rights  of  the 
several  owners  of  such  lands  in  the  waters  therein  are  in  almost 
all  particulars  similar  to  the  mutual  and  reciprocal  rights  of  the 
owners  of  riparian  land  along  the  course  of  an  ordinary  stream 
in  the  use  of  its  waters.  This  conclusion  was  considered  neces- 
sary to  the  full  development  and  use  of  the  natural  resources  of 
the  state  and  to  the  prosperity  and  general  welfare  of  its  people. 
The  geological  formation  of  the  land,  its  topographical  char- 
acteristics, and  the  aridity  of  the  climate  produced  conditions  so 
different  from  those  of  the  countries  from  which  our  common  law 
rules  were  derived,  that  the  well-known  rule  that  the  ownership 
of  the  soil  in  fee  gave  absolute  title  to  all  beneath  the  surface, 
including  such  subterranean  water  supplies,"  was  held  unsuitable 
to  our  conditions.  In  this  the  court  followed  the  fundamental 
principles  on  which  the  common  law  is  founded,  rather  than 
the  rules  for  technical  application  to  special  subjects  adopted 
for  practical  use  in  the  different  conditions  prevailing  in  the 
countries  from  which  we  derive  that  law.  It  gave  emphasis  to 
the  ancient  maxim  of  the  Civil  Law,  embodied  in  our  Civil  Code, 
and  which  is  also  a  part  of  the  common  law,  that  *^when  the 

*^  Katz  V8.  Walkinshaw,  141  Cal.  116. 

"Hanson  vs.  Mocue,  42  Cal.  309;  Cross  va.  Kitte,  69  Cal.  222;  S.  P. 
R.  R.  Co.,  vs.  Dufour,  95  Cal.  617;  Gould  vs.  Eaton,  111  Cal.  644. 


LUOIBN  SHAW.  207 

reason  of  a  rule  ceases^  so  should  the  rule  itself/'  ^  It  is  a  good 
example  of  the  elasticity  of  the  common  law^  showing  its  adap- 
tation to  the  varying  conditions  of  human  life  in  countries  other 
than  that  of  its  origin. 

This  comprises  in  part  the  history  of  the  water  law  in  this 
state  down  to  the  present  time.  The  demand  for  additional 
water  and  for  the  economic&l  application  of  the  water  already  in 
use  continues  without  abatement  and  with  constantly  increas- 
ing urgency,  because  of  tixe  continuing  influz  of  population  and 
the  large  area  of  land  capable  of  vastly  increased  production, 
when  water  is  applied  by  artificial  means.  The  next  process  in 
the  development  of  the  use  of  water,  the  storing  of  water  in 
elevated  reservoirs  in  the  mountains,  I  have  already  mentioned. 
I  do  not  believe  that  the  law  applicable  to  this  process  will 
present  much  difficulty.  The  legal  aspect  of  these  developments 
should  present  no  very  novel  problems.  The  physical  aspect 
presents  alluring  prospects  of  increasing  prosperity  and  a  fertile 
field  for  theoretical  speculation,  the  discussion  of  which  would 
be  out  of  place  here. 

"Section  3510. 


THE  KANSAS  INDUSTRIAL  COURT. 

BY 

F.  DUMONT  SMITH, 

OF  XAN8A8* 

This  Kansaa  idea  of  an  Industrial  Court  seems  a  little  startling 
to  lawyers  at  firsts  and  especially  those  who  have  not  followed 
closely  the  great  and  constantly  accelerating  development  of  the 
police  power  in  the  last  50  years. 

Of  course^  there  has  always  been  a  police  power.  The  first 
police  power  was  in  the  despotic  control  of  the  father,  the  head  of 
any  family.  But  that  branch  of  the  police  power,  I  regret  to  say, 
is  today  practically  obsolete.  And  the  record  of  civilized  man  on 
down  through  the  ages  is  a  chronicle  of  the  constant  giving  up, 
the  yielding  of  individual  right  to  the  public  good;  in  other  words, 
what  we  call  the  police  power. 

When  the  periphery  of  my  private  right  impinges  upon  the 
periphery  of  your  private  right,  both  become  stationary.  In 
fact,  the  law  of  private  rights  crystallized  into  practically  its 
present  form,  before  the  time  that  Blackstone  wrote  his  com- 
mentaries in  1768.  But,  when  the  periphery  of  my  private  right 
impinges  upon  the  periphery  of  the  public  right,  my  private  right 
not  only  ceases  to  expand,  but  it  contracts.  And  that  is  one 
of  the  most  startling  of  all  of  the  sociological  facts  of  the  last  50 
years — no  matter  whether  we  condemn  or  approve,  the  fact  exists. 

This  Industrial  Court  is  tied  up  with  and  depends  upon  the 
police  power.  And  before  discussing  the  court,  I  want  to  give 
you  gentlemen  a  parable,  something  you  probably  have  not  heard 
of  in  a  long,  long  time,  if  you  ever  did.  I  hope  you  will  pardon 
the  implication  that  that  remark  seems  to  convey,  but  the  fact  is 
that  the  lawyers  with  whom  I  am  acquainted  show  very  slight 
traces  of  early  religious  training.  The  parable  is  this :  Bill  and 
Joe  own  adjoining  farms.  And  as  frequently  happens,  there  is 
a  dispute  over  the  line  fence.  And  nothing  furnishes  perhaps  a 
more  acrimonious  dispute  than  a  line  fence,  unless  it  is  a  row  in 
«  church.  So  one  day  Bill  and  Joe  meet  at  the  fence.  Bill  has  a 
shotgun  and  Joe  a  club.    And  when  it  is  over  Joe  is  dead  and  his 

(208) 


F.  DUMONT  SMITH.  209 

wife  a  widow  and  his  children  orphans.  Bill  is  sent  to  peniten- 
tiary, and  his  wife  is^  in  effect,  a  widow,  and  his  children  orphans. 
And  after  it  is  all  over,  after  all  the  bloodshed  and  sorrow,  the 
dispute  about  the  line  fence  remains  exactly  where  it  was  before. 
All  the  violence  has  thrown  no  light  upon  that  dispute. 

Let  us  apply  that  parable.  Bill  owns'  a  factory,  or  rather, 
because  he  is  a  capitalist,  we  ought  to  call  him  ^^  William,^^  and 
Joe  works  for  him — a  great  many  Joes.  The  Joes  complain  that 
they  are  not  getting  w&ges  enough.  William  says,  ^^  I  can't  pay 
you  any  more.  I  am  not  making  any  money."  The  Joes  think 
that  William  is  perhaps  lying.  He  does  sometimes.  And  so  they 
strike.  William  closes  his  factory.  Bye  and  bye  he  concludes  to 
open  it,  he  puts  a  barbed  wire  fence  around  it,  he  imports  ^rike 
breakers,  he  hires  professional  gunmen  as  guards.  Meanwhile, 
poverty  and  hunger  and  cold  invade  the  little  homes  of  the  Joes. 
And  they  get  excited,  touch  off  a  stick  or  two  of  dynamite.  Strike- 
breakers are  killed  or  maimed.  Some  of  the  Joes  are  killed. 
Property  having  no  relation  whatever  to  the  strike  is  destroyed. 
The  traffic  and  business  of  great  communities  is  interrupted  or 
paralyzed.  After  a  while,  the  militia  are  called  out.  And  finally, 
when  both  sides  are  exhausted,  they  have  an  arbitration. 

Now,  this  is  the  vice  of  all  arbitration,  and  there  is  a  vast 
amount  of  ignorance  about  this  Industrial  Court  because  people 
confuse  it  with  an  arbitration.  The  vice  of  an  arbitration  is 
that  both  parties  to  the  controversy  are  admitted  to  the  arbitral 
body.  The  truth  and  justice  of  the  controversy  is  not  sought. 
The  result  always  is  a  diplomatic  peace,  a  peace  imposed  by  the 
stronger  upon  the  weaker.  If  the  union  is  strong  and  the  em- 
ployer weak,  the  union  wins.  If  the  employer  is  strong  and  the 
union  weak,  the  employer  wins.  But  no  attempt  is  made  to  find 
out  where  the  line  fence  belongs — whether  Joe  was  getting  a 
fair  wage,  is  giving  an  honest  day's  work  for  it;  whether  William 
was  profiteering.    And  the  result  is  simply  an  armed  truce. 

No  controversy  is  ever  settled  until  it  is  settled  in  the  light  of 
justice.  Justice  is  the  universal  solvent.  If  we  could  implant 
in  every  human  heart  the  instinct  of  justice,  there  would  be  no 
controversy  between  man  and  man.  It  would  even  settle  a  lot 
of  the  divorce  cases. 


210  THE  KANSAS  INDUSTRIAL  OOUKT. 

'New,  we  have  attempted  in  Kansas  to  apply^  juridical  and 
judicial  processes  to  these  controversies.  Mr.  Gompers  says  that 
this  industrial  warfare,  this  civil  warfare,  is  the  only  way  to  settle 
these  controversies.  We  in  Kansas  are  trying  an  experiment,  and 
later  I  shall  try  to  tell  you  how  that  experiment  is  working  out. 

Coming  now  to  this  question  of  the  police  power.  Edmund 
Burke,  in  one  of  his  sublime  orations,  declared  that  the  whole 
state  and  power  of  England,  its  kings,  its  lords,  its  commons,  its 
army  and  its  navy,  were  ordained,  instituted^and  maintained  for 
the  sole  purpose  of  getting  12  honest  men  into  a  jury  box.  In 
other  words,  for  a  government  by  law,  and  not  by  arbitrary  power. 
But  Burke's  definition  was  too  narrow.  The  truth  is  that  govern- 
ments are  ordained  and  maintained  solely  for  the  exercise  of  this 
police  power,  of  which  the  administration  of  justice  is  but  a  part. 
Because  the  police  power  has  to  do  with  the  general  welfare  of 
the  people,  it  is  the  crown  and  flower  of  all  civilized  government. 

The  police  power  meets  you  at  the  tbreshhold  of  life,  where 
it  prescribes  the  qualifications  of  the  doctor  and  nurse  who  bring 
you  into  the  world.  It  follows  you  to  the  grave,  where  it  regulates 
the  cemetery  in  which  your  ashes  are  finally  inumed.  During  all 
that  interval,  in  every  moment  of  that  time,  from  the  first  puny 
wail  of  the  newborn  child,  to  the  death  rattle  of  the  dying,  that 
police  power  is  about  you,  surrounding  you  with  its  invisible  pro- 
tecting influence ;  alone  or  in  company,  waking  or  sleeping,  in  the 
crowded  street  or  on  the  lonely  prairie,  that  police  power  is  there. 
It  educates  your  children  and  protects  your  family.  It  not  only 
protects  your  life  and  property,  but  it  protects  our  peace,  your 
health,  and  even  your  comfort. 

The  police  power  is  the  only  power  that  can  take  and  destroy 
private  property  for  a  public  use,  as  when  it  destroys  an  unsafe 
or  an  unsanitary  building.  It  is  the  only  power  that  can  invali- 
date a  contract,  which  the  Constitution  says  shall  be  kept  sacred. 
It  is  the  only  power  that  can  override  a  treaty  between  this  and 
a  foreign  country,  which  the  Constitution  says  shall  be  the 
supreme  law  of  the  land.  Nothing  is  too  large  for  its  grasp; 
nothing  too  small  for  its  notice.  It  stops  the  great  liner  at  the 
threshhold  of  the  country,  to  examine  every  passenger,  and  it  pro- 
hibits undue  slaughter  of  the  migratory  birds  in  their  seasonal 
flight.    It  is  the  most  flexible  of  all  powers.    The  same  power  that 


F.  DUMONT   SMITH.  211 

regulates  the  stage  coach  was  found  suflBcient  to  regulate  the 
steamboat^  the  locomotive,  the  automobile,  and  today  it  is  reach- 
ing its  long  arm  into  the  ether  to  regulate  the  air  lanes  and  the 
aviator. 

But  its  two  great  and  most  important  functions  are  the  pre- 
servation of  the  public  peace  and  the  protection  of  the  public 
health.  And  upon  these  two  foundations,  chiefly,  the  Industrial 
Court  Law  is  built.  In  the  first  place,  the  law  declares  that  food, 
fuel,  and  clothing  are  the  essentials  of  human  life.  That  is  not 
a  legislative  fiat — ^it  merely  recognizes  a  truth  in  nature.  In  the 
case  of  Jones  vs.  City  of  Portland,  the  Supreme  Court  of  the 
United  States  took  judicial  knowledge  of  the  fact  that  fuel  was 
a  necessary  of  life  in  Maine,  and  that  for  that  reason  the  City  of 
Portland  might  engage  in  the  fuel  business,  the  same  as  it  might 
engage  in  furnishing  water  to  its  citizens.  ^Shelter  is  not  so 
essential.  A  man  can  live,  love,  and  be  happy  in  a  tent,  a  dugout, 
or  a  cave.    But  these  three  thiiigs  he  must  have. 

Now,  the  state  is  not  concerned  with  whether  a  man  have  one 
suit  of  clothes  or  a  dozen,  whether  he  have  three  meals  a  day  or 
five,  whether  he  have  fuel  to  heat  a  20-room  mansion  or  a  2-room 
cottage.  But  the  state  is  concerned,  and  deeply  concerned,  that 
every  citizen  shall  have  so  much  food,  fuel,  and  clothing  as  shall 
preserve  his  health  and  the  health  of  his  family.  So  the  law 
says  that  whenever  there  is  a  strike  in  these  essential  industries, 
.such  a  shortage  of  these  essentials  as  will  affect  the  public  health, 
then  the  court  shall  begin  to  function.  It  proceeds  to  the  spot.  It 
has  inquisitorial  power.  It  subpcenaes  witnesses.  It  finds  out 
what  is  the  cause  of  the  strike.  It  finds  out  whether  a  fair  wage 
is  being  paid,  and  an  honest  day's  work  being  given,  whether 
there  is  any  profiteering — in  short,  it  determines  where  that  line 
fence  belongs.  And  if  these  were  its  only  powers,  the  court  would 
be  worth  while.  Because  no  strike  has  ever  succeeded  that  did 
not  have  public  sympathy  with  it.  Publicity,  like  the  sunlight  is 
a  great  germicide.  No  sociological  wrong  can  exist  when  pub- 
licity is  brought  to  bear  upon  it. 

But  of  course,  under  this  branch  of  the  law,  a  strike  in  a 
toothpick  factory  or  a  match  factory,  neither  of  those  being  an 
essential  industry,  would  not  call  forth  the  exercise  of  the  court'^s 
powers.    Here  again  is  a  misunderstanding.    People  wonder  why 


212  THE  KANSAS   INDU8TKIAL  COURT. 

the  court  does  not  interfere  with  every  strike.  The  court  can  only 
interfere  in  a  strike  that  threatens  two  things^  either  the  public 
peace  or  the  public  health,  and  not  until  that  threat  is  imminent 
But  every  strike  of  any  considerable  magnitude  threatens  the 
public  peace.  And  there  again,  when  that  threat  comes,  the  court 
interferes.  Let  me  give  an  illustration.  You  remember  there  was 
a  packinghouse  strike  last  winter.  There  were  3000  packing- 
house employees  in  Kansas  City,  Kansas,  who  struck.  Immedi- 
ately the  Industrial  Court  went  over  there  and  offered  to  mediate. 
Both  sides  refused.  They  wanted  to  fight  it  out.  The  court  said 
to  the  packers,  ^'  If  there  is  a  shortage  of  meat  that  threatens 
health  in  Kansas,  the  state  will  take  charge  of  your  plant.''  It 
aaid  to  the  strikers,  "If  there  is  a  single  overt  of  violence, 
the  troops  will  be  put  in  here.''  As  the  result,  that  strike  came  to 
a  losing  close  without  one  act  of  violence,  or  even  a  window  broken 
in  Kansas  City,  Kansas,  while  in  every  other  packinghouse  center, 
men  were  beaten  to  death,  maimed,  half  killed,  and  property 
destroyed. 

Nowhere,  I  think,  has  this  accelerating  growth  of  the  police 
power  and  its  acceptance  by  the  courts  been  more  clearly  shown 
than  in  the  changing  views  of  the  Supreme  Court  of  the  United 
States.  For  the  Supreme  Court  of  the  United  States  does  some- 
times change  its  mind. 

Beginning  with  the  case  of  Munn  vs.  Illinois,  with  which  you 
are  all  familiar,  where  was  exhibited  a  tendency  to  get  away  f ron\ 
past  holdings  that  seemed  to  be  thoroughly  settled  and  crystal- 
lized in  American  law,  that  is,  that  the  right  of  the  public  to 
regulate  an  industry  was  correlative  with  the  right  to  demand 
a  service,  such,  for  instance,  as  a  street  railway  or  a  steam  rail- 
way, or  a  waterworks,  or  anything  of  that  sort ;  and  that,  where 
the  public  could  not  demand  the  service,  it  could  not  regulate  it. 
It  is  true,  undoubtedly  out  of  deference  to  that  general  opinion, 
the  Illinois  law  declared  these  elevators  public  elevators.  But  in 
the  discussion,  it  was  quite  clearly  shown  that  that  was  not 
absolutely  essential  to  the  opinion,  and  that  case  was  affirmed 
in  Budd  vs.  New  York,  I  think  in  1892,  where  Justice  Brewer 
wrote  a  very  powerful  dissenting  opinion,  and,  as  the  justices  of 
the  Supreme  Court  frequently  do  in  their  dissents,  told  the  world 
that  if  that  opinion  stood,  the  Constitution  was  destroyed  and  the 
country  ruined. 


F.  DUMONT  SMITH.  213 

Mnally^  in  1915^  in  tide  case  of  the  German  Alliance  Insurance 
Company  vs.  The  State  of  Kansas^  the  court  departed  absolutely 
from  the  old  rule.  It  will  be  conceded  that  the  fire  insurance 
business  is  purely  a  matter  of  private  cpntract.  An  insurer  can 
give  or  withhold  a  policy,  he  can  even  cancel  it  after  it  is  given. 
But  the  court  in  that  case  held  that  the  fire  insurance  business 
was  so  vast  in  this  country,  that  the  whole  fabric  of  private  credit 
was  so  tied  up  with  it,  that  it  was  so  impressed  with  the  public 
interest,  that  the  state  might  regulate  it. 

That  was  an  outpost  case,  far  advanced,  and  it  has  never  been 
withdrawn.  There,  for  the  first  time,  was  established  the  prin- 
ciple that  a  purely  private  business  might  be  so  impressed  with 
the  public  interest  that  the  state  could  regulate  it. 

I  come  now  to  that  very  startling  decision,  Wilson  vs.  New, 
which  upheld  the  Adamson  Act,  a  decision  that  I  think  sent  cold 
chills  down  the  backbones  of  most  of  us,  because  we  thought  we 
would  have  to  learn  our  constitutional  law  all  over  again.  In 
that  case,  as  you  recall,  the  Supreme  Court  took  judicial  knowl- 
edge— ^mark  this,  took  judicial  knowledge— of  the  fact  that  a 
strike  was  impending  upon  all  the  railroads  of  the  United  States, 
that  this  strike  would  stop  the  distribution  of  the  necessaries 
of  life,  and  that  that  would  impair  the  public  health,  and  that 
for  that  reason.  Congress,  acting  under  that  implied  police  power, 
which  it  receives  along  with  the  direct  grant  of  authority  over 
interstate  commerse,  had  a  right  to  satisfy  these  impending 
strikers,  by  reducing  the  day  from  nine  to  eight  hours,  which,  in 
effect,  regulated  wages,  because  it  accelerated  the  time  when  over- 
time would  begin.  And  Mr.  Justice  McBeynolds,  in  a  somewhat 
ironical  dissenting  opinion,  called  their  attention  to  the  fact  that, 
if  Congress  could  say  to  the  employer  that  eight  hours  constituted 
a  day's  work  for  which  the  employee  might  demand  a  day's  wage, 
that  it  might  also  say  to  the  employee  that  he  could  not  demand 
a  day's  wage  until  he  had  worked  eight  hours.  And  that  probably 
is  true.  But  this  decision  was  based  upon  the  proposition  that 
the  distribution  of  these  necessaries  of  life  would  fail,  and  would 
threaten  the  public  health.  Distribution  is  secondary — produc- 
tion comes  before  distribution.  All  the  railroads  in  the  United 
States  cannot  furnish  one  bottle  of  milk  to  a  hxingry  baby  until 
the  cow  functions.    All  the  railroads  in  the  United  States  cannot 


214  THE  KANSAS  INDUSTRIAL  COURT. 

furnish  a  loaf  of  bread  until  the  farmer,  the  miller,  and  the  baker 
have  cooperated.  How  absurd,  then,  to  say  that  the  state,  in  the 
interests  of  public  health,  might  regulate  distribution,  which  is 
secondary,  but  may  not  regulate  production,  which  is  primary. 

We  hear  a  great  deal  said  about  chattel  slavery  imposed  by  this 
law.  This  law  does  not  compel  any  workman  to  remain  at  work 
an  hour,  if  he  does  not  want  to.  But  if  it  did,  it  might  be  con- 
stitutional. We  have  a  law  in  Kansas,  and  there  is  a  similar  law 
in  several  other  states,  and  it  has  been  upheld  by  the  court,  which 
compels  a  locomotive  engineer,  when  he  has  started  on  his  run, 
to  remain  with  his  engine  until  he  reaches  the  next  division  point. 
The  continuity  of  travel  and  distribution,  the  safety  of  the  public, 
demand  it.  Chattel  slavery,  absolutely — for  the  time  being  that 
engineer  is  chained  to  the  throttle,  exactly  like  the  galley  slave  to 
his  oar.  But,  mark  you,  no  one  went  out  and  conscripted  Casey 
Jones  and  compelled  him  first  to  we  a  wiper,  then  a  fireman,  and 
then  an  engineer,  and  no  one  compelled  Casey  Jones  to  be  an 
engineer  one  moment  after  he  left  his  engine  at  the  division  point. 
But  when  he  assumes  that  position,  he  assumes  that  continuity 
of  employment  as  part  of  the  burden  of  his  employment,  just  as 
he  assumes  the  risk  of  wrecks  and  accidents,  just  as  a  miner 
assumes  the  penalty  of  going  underground  to  earn  his  daily  wages. 

When  once  we  get  that  principle,  we  will  understand,  I  think, 
that  this  law  is  constitutional;  when  we  establish  tiiat  these 
industries  are  essential  to  human  life  and  to  human  health, 
whoever  enters  those  industries  in  effect  enlists  exactly  as  does 
the  soldier  or  the  policeman  in  the  preservation  of  the  public 
peace.  He  is  bound,  not  to  continue  to  work  individually — ^he 
may  retire  from  that  employment  at  any  moment.  But  he  can^t 
conspire,  he  can't  stir  up  a  mutiny  that  shall  destroy  the  army 
of  the  public  weal. 

Mr.  Gompers  has  had  a  great  deal  to  say  about  the  God-given 
right  to  strike.  With  all  due  respect  to  the  religious  opinions  of 
any,  I  know  of  no  such  rights  that  are  enforceable  in  court.  The 
tablets  that  were  handed  down  amid  the  thunders  of  Siani  are 
not  self-executing  today.  They  require  a  man-made  mandate  for 
their  enforcement.  When  the  Thirteen  Colonies  declared  their 
independence  and  erected  themselves  into  sovereign  states,  their 
legislative  assemblies,  each  of  them  inherited,  as  a  matter  of 


F.  DUMONT  SMITH.  215 

course^  the  pow^r  of  the  British  Parliament^  a  power  OBoiiipotent, 
without  check  or  restraint,  until  or  whenever  tixe  people  chose  to 
place  a  check  by  means  of  a  constitution.  It  is  of  course  axiomatic 
the  the  federal  Constitution  is  a  grant  and  that  state  constitutions 
are  a  restriction.  We  look  to  one  to  see  what  is  given ;  to  the  other, 
to  see  what  is  denied.  And  we  shall  look  in  vain  in  any  state 
constitution  for  any  denial  of  the  right  of  the  legislature  to  pro- 
hibit strikes,  if  it  sees  fit.  The  courts  have,  in  a  tacit  way,  assumed 
that  strikes  are  legal,  although  some  of  the  earlier  English 
decisions  denounced  and  suppressed  them  as  conspiracies. 

So  these  gentlemen  appeal  to  the  protection  of  the  Fourteenth 
Amendment.  They  say,  first,  that  it  is  a  denial  of  due  process 
of  law.  As  I  understand  that  much  abused  phrase,  it  simply 
means  this :  It  does  not  necessarily  imply  that  the  case  has  been 
tried  in  a  court  of  law  or  equity,  it  may  have  been  heard  before 
a  drainage  board  or  a  tax  commission;  but  if  the  litigant  has 
had  his  day  in  court,  and  process  for  his  witnesses,  in  effect,  if 
there  has  been  trial  before  judgment  and  judgment  before  con- 
viction, then  he  has  had  due  process  of  law.  They  say,  too,  they 
are  denied  the  equal  protection  of  the  law.  The  equal  protection 
of  the  law  does  not  deny  to  the  legislature  the  right  of  classifica- 
tion, and  if  the  classification  is  reasonable,  it  may  impose  burdens 
and  restrictions  upon  a  particular  class,  which  burdens  or  restric- 
tions are  not  imposed  upon  the  rest  of  the  citizens  of  the  state. 
The  only  query  is.  Is  the  classification  reasonable?  And  the 
proponents  of  the  law  are  not  compelled  to  prove  that  it  is  reason- 
able— ^the  opponents  must  prove  that  it  is  unreasonable. 

In  this  case  we  submit  that  the  classification  is  not  only  reason- 
able, but  is  inevitable.    It  is  the  only  classification. 

Now,  there  is  a  curious  periodicity  in  the  recurrence  of  these 
great  politico-legal  questions  in  the  Supreme  Court  of  the  United 
States,  with  its  dual  aspect,  partly  legal,  partly  political;  ques- 
tions that  have  stirred  this  country  from  end  to  end,  questions 
that  have  made  and  unmade  political  parties,  questions  that  have 
even  sown  the  dragon's  teeth  of  civil  war.  And.  they  recur  just 
about  once  in  the  life  of  a  biblical  generation,  every  25  years. 
Beginning  in  1804  with  Burr  vs.  Madison,  which  established  the 
supremacy  of  the  judiciary  against  the  unconstitutional  aggres- 
sions of  the  other  branches,  25  years  later  came  those  decisions 


216  THE  KANSAS  INDUSTRIAL  OOURT. 

under  th^general  welfare  clause^  deciding  that  the  federal  govern- 
ment might  engage  in  works  of  internal  improvement  within  the 
states^  a  proposition  bitterly  fought  by  a  great  political  party: 
Decisions  under  which  the  federal  government  today  meddles  in 
almost  every  man's  business^  and  under  which  our  government  has 
greatly  changed  from  a  rather  free  representative  government  to  a 
comparatively  despotic  bureaucracy.  Then  25  years  later  came  the 
Dred  Scott  decision — ^good  law,  undoubtedly,  when  it  was  written, 
but  reversed  by  the  arbitrament  of  battle.  Twenty-five  years 
later  came  the  slaughterhouse  cases,  in  which  finally,  after  much 
discussion,  a  new  citizenship  was  established,  federal  as  distin- 
guished from  state,  and  admitting  corporations  under  the  word 
"persons**  to  the  protection  of  the  Fourteenth  Amendment. 
Twenty-five  years  later  came  the  decisions  under  the  Sherman 
Act.  Bightly  or  wrongly,  the  people  had  come  to  regard  those 
great  aggregations  of  capital,  those  octopi,  if  you  please,  with 
their  tentacles  in  every  part  of  the  country  and  their  digestive 
organs  in  New  Jersey,  as  inimical  to  their  welfare.  And  now,  25 
years  later,  come  these  labor  dispute  decisions.  The  Clerk  of 
the  Supreme  Court  tells  me  there  are  a  great  mass  of  those  cases. 
And  not  the  least  important  of  these  recurring  cycles  of  decisions 
are  these  labor  cases. 

It  is  somewhat  curious,  when  you  look  back  over  the  history 
of  that  court,  because  the  precession  of  the  equinoxes,  the  resur- 
gence of  the  tides,  is  hardly  more  regular  than  the  recurrence 
of  these  great  questions.  Upon  the  solution  of  these  questions 
depends  the  industrial  future  of  this  country,  for  this  country 
today  is  shifting  from  an  agricultural  foundation  to  an  industrial 
foundation. 

Now,  a  word  as  to  the  operation  of  this  law,  and  how  we  regard 
it  in  Kansas.  Since  the  law  was  passed,  Governor  Allen  has  been 
twice  before  the  people  of  Kansas  and  overwhelmingly  endorsed. 
At  the  last  primary  election,  just  closed,  (Jovemor  Morgan,  who 
heartily  supported  the  law  and  the  administration,  received  a 
plurality  of  15,000  votes  over  his  nearest  opponent,  (Jovemor 
Stubbs.  Governor  Stubbs  also  supported  the  law  without  reserva- 
tion. Those  two  candidates  received  over  70  per  cent  of  the  total 
primary  vote.  The  other  three,  who  condemned  the  law.  were 
overwhelmingly  beaten,  and  the  man  who  made  an  alliance  with 
the  Union-Labor  vote,  got  a  mere  15,000  votes. 


F.   DUMONT  SMITH.  217 

Today  in  Kansas  the  great  railroad  shops  at  Topeka  are  func- 
tioning at  75  per  cent  of  normal^  those  at  Chanute  at  90  per  cent, 
and  onr  railroads  are  running  on  time,  and  there  is  no  interrup- 
tion of  either  production  or  distribution.  We  are  mining  260,000 
tons  of  coal  a  month,  enough  to  supply  the  state  of  Kansas,  and  we 
confront  next  winter  with  cheerful  tranquility.  There  is  no 
picketing  in  Kansas,  and  for  that  reason  the  strike  is  being  broken. 
In  Colorado,  Governor  Shoup  has  put  down  picketing  and  violence 
with  60  rangers  and  they  are  mining  more  coal  in  Colorado  than 
they  were  before  the  strike. 

But  the  distinction  is  this.  Governor  Shoup  will  go  out  of 
office  in  January  and  like  Cromwell  leave  no  succesor  and  no 
system  to  take  his  place.  Governor  Allen,  with  far-sighted  con- 
structiveness,  has  established  a  piece  of  administrative  machinery 
that  will  function  regardless  of  governors. 

I  want  to  make  a  criticism,  but  I  am  afraid  there  are  some 
Illinois  people  here.  However,  I'll  chance  it.  Government  do^s 
not  depend  so  much  on  laws  as  we  lawyers  are  apt  to  think. 
When  the  people  of  a  commonwealth  elect  an  Allen  or  a  Shoup 
governor,  they  are  rewarded  with  industrial  peace,  with  continuity 
of  service,  of  production  and  distribution.  When  a  great  com- 
monwealth like  Illinois  elects  a  Lem  Small,  it  is  rewarded  with 
the  black  shame  of  the  Herrin  massacre,  more  cold-blooded, 
brutal,  and  ferocious  than  anything  the  Huns  committed  in  the 
four  years  of  warfare.  That  Herrin  afEair  was  the  fine  exfolia- 
tion and  flower  pf  the  union  labor  spirit  among  the  miners.  What 
they  did  at  Herrin,  they  would  do  everywhere  if  they  dared.  Let 
me  pause  there  for  a  moment.  You  hear  a  great  deal  about  this 
wave  of  lawlessness,  this  flood  of  lawlessness,  contempt  and  dis- 
regard of  the  law.  Does  it  all  come  from  below?  Far  from  it. 
Very  much  of  it  comes  from  executives  and  police  officers  who 
are  functioning  with  one  eye  on  the  next  election,  who  are  pan- 
dering to  the  lowest  classes  of  society  for  votes.  What  can  you 
expect  of  these  ignorant,  foreign-born  citizens,  slaves  and  Helots 
for  a  hundred  generations,  suddenly  freed,  dnmk  with  the  new 
wine  of  liberty,  when  we  set  before  them  the  example  of  governors, 
mayors,  sheriffs,  police  officers,  and  police  magistrates,  who  them- 
selves defy  the  law  and  fail  to  recognize  or  enforce  it?  And  that 
to  a  large  degree,  my  friends,  is  the  source  and  fountain  head  of 


318  THE  KANSAS   INDUSTBIAL  COURT. 

this  flood  that  is  overwhelming  U8.  It  is  astonishing  that  in  a 
country  like  this  that  worships  conrage  as  one  o{  the  supreme 
virtues^  a  country  that  rewards  a  Boosevelt  or  a  Coolidge  with  the 
highest  honors  in  its  gift^  that  in  such  a  country  the  average 
politician  should  believe  that  the  road  to  political  suoeess  must 
resemble  the  tortuous  track  of  a  hunted  rabbit.  This  country  can- 
not endure  half  law-abiding  and  half  lawless.  The  law-abiding  in 
self-defense  will  become  lawless.  And  that  infection  is  spreading 
over  our  country.  We  are  told  by  the  optimists  that  this  is 
the  richest^  the  greatest,  the  most  powerful  nation  the  world  eyer 
saw.  And  that  is  true.  We  stand  today  upon  the  very  pinnacle 
of  this  world^s  power  and  prosperity.  But  in  the  essential  verities 
that  constitute  a  state,  the  protection  of  life  and  property  and 
human  liberty  and  freedom  of  speech,  and  above  all  in  respect 
for  the  law,  we  are  far  below  our  British  cousin.  In  fact,  I  think 
we  rank  a  little  above  the  Turk  and  the  Balkan  States.  We  are 
rich.  But  wealth  is  not  all.  There  is  such  a  thing  as  fatty 
degeneration  of  the  soul,  and  this  nation  shows  every  symptom 
of  it.  It  is  true  we  saw  in  1917  that  the  fire  on  the  altar  could 
flame  as  brightly  as  of  old.  But  fitfully,  not  steadily — and  it  has 
died  down.  And  in  the  rery  hour  of  the  nation's  peril,  the  trailing 
garments  of  liberty  were  slimed  vrith  the  greed  of  countless  profi- 
teers. Remember,  other  nations,  as  great  and  strong  as  we, 
comparably  to  their  times,  have  trodden  the  path  we  tread  today 
and  gone  down  to  ruin  and  death. 

Steep  are  the  steps,  slow  hewn  in  flintiest  rock. 

States  ohmb  to  power  by, 
And  slippery  those  with  gold,  down  which  they 

Stumble  to  eternal  mock. 


THE  WIDENING  RANGE  OP  LAW. 

BY 

LORD  SHAW, 

OP  DUiNFBRMUNEV  SCOTLAND. 
MEMBEB  OF  THE  PBIVY  COUNCIL  OF  HOUSE  OF  LOBDS. 

I  deeply  feel  the  honor  of  your  invitation.  And  I  sincerely 
recognize  the  hearty  cordiality  of  your  welcome.  This  great 
audience;  the  eminence  of  the  men  whom  I  see  around  me;  the 
resonant  call  of  professional  brotherhood;  the  deep  respect  for 
the  law  which  inevitably  accompanies  the  progress  of  the  Anglo- 
Saxon  race ;  the  unifying,  harmonizing  note  which  the  law  thus 
adds  to  the  aasociations  of  history  and  literature  and  blood;  all 
that  kind  and  rank  of  ideas  come  tramping  through  the  mind 
at  such  a  meeting  as  this.  You  Americans  speak  in  terms  of 
space^  with  a  frank  and  honest  pride  in  the  glorieb  of  your 
breadth  of  continent.  Englishmen  speak  in  terms  of  time, 
with  an  august  devotion  to  a  mighty  history.  But  it  is  left  to 
the  Scotchman  to  overleap  both  space  and  time  in  the  terms  of 
human  brotherhood.  What  matters 'it  to  him  '^  though  seas 
between  us  braid  hae  rowed  *^  ?  What  is  it  to  him,  the  ancient 
grudge  of  four  generations?  He  has  come  and  thriven  with 
you  and  helped  to  live  that  down:  The  large  vision  seems  not 
unnatural  to  him,  looking  before  and  after :  He  knows  about  the 
Clan  feuds,  sometimes  serious  and  sometimes  silly,  and  he  has 
outlived  them  all.  The  lion  can  lie  down  with  the  lamb,  even 
the  Campbell  with  the  McGregor.  If  I  could  presume  or  dare 
to  represent  even  for  a  few  brief  moments  the  land  that  bore 
me,  I  should  say  as  my  first  word  to  you  today:  Again  and  for 
ever  we  are  trusty  friends.  We  can  brace  ourselves  for  the 
future  which  is  coming,  by  taking  in  any  beverage  which  is 
according  to  law  ^'  a  cup  of  kindness  yet,  for  the  days  of  Auld 
Lang  Syne.*' 

By  invitation,  addressed  to  me  in  terms  of  grace  and  courtesy 
similar  to  those  of  your  own,  I  address  next  week  the  friends 
of  the  Canadian  Bar  Association,  at  Vancouver.  The  bi^other* 
hood  in  law  of  this  vast  North  American  Continent  has.  gath- 

(219) 


220  THE  WIDENING  RANGE  OF  LAW. 

ered  at  the  shores  of  the  Pacific  at  one  of  the  greatest  con- 
junctures of  human  history.  Was  this  by  accident  or  by  design  ? 
Anyhow^  the  event  has  a  singular^  a  unique  interest.  My  reflec- 
tions upon  it  and  upon  its  happenings  in  1922,  have  led  me  into 
a  train  of  ideas,  the  brief  exposition  of  which  may,^  I  trust, 
hot  be  unacceptable  to  this  gathering  of  thoughtful  men.  Do 
not  ask  me  to  ticket  them  by  a  name.  The  philosopher  or  jurist 
would  hanker  after  some  such  title  as  '^The  Widening  Power 
of  Jural  Conceptions.^'  Plain  people  like  ourselves  would  simply 
call  it  "  The  Widening  Bange  of  Law."  ■ 

Stand  aloof  for  a  little  and  watch  that  moving,  jostling,  elbow- 
ing, combatant  crowd  which  we  call  civilization.  There  is  a 
figure  there  that  is  bigger,  more  upstanding,  more  commanding 
than  on  your  last  survey.  More  and  more  he  seems  to  control 
the  crowd,  suppressing  confusion,  regulating  traffic,  making  the 
rough  places  plain  and  every  place  safe:  and  his  hand  is  swift 
and  heavy  on  crime  and  on  the  sneak,  and  tender  and  helpful 
to  the  weak  and  the  struggling  and  the  oppressed.  His  name 
is  law.  When  he  gets  into  his  working  garb  we  call  him  Juris- 
prudence. For  Jurisprudence  is  just  law  with  a  gown  on.  And 
if  it  is,  as  it  should  be,  a  roomy  gown,  it  neither  chills  his  heart, 
nor  impedes  his  growth.  '  More  and  more,  as  you  are  seeing 
with  your  eyes,  that  noble  honest  figure  is  becoming  a  leader 
and  commander  to  peoples,  classes,  states  and  nations,  whose 
combined  movements,  as  I  say,  are  civilization  itself.  And  more 
and  more  he  is  getting  more  real  wisdom,  more  understanding 
and  heart.  But  by  the  Widening  Range  of  Law  I  mean  not 
merely  that  deeper  invasion  into  the  secrets,  the  motives,  the 
regulative  ideas  which  govern  the  relations  of  men,  but  also  that 
objective  side  in  which  law  is  more  and  more  conquering  wider 
fields,  more  and  more  vindicating  its  functions,  not  among  indi- 
vidual citizens  alone,  but  also  among  great  ranks  and  classes  of 
society,  and  even  moulding  the  policies  of  states  and  common- 
wealths, and  among  them  all  and  everywhere  placing  reason 
against  passion  and  right  against  power.  At  this  hour,  after 
the  Oreat  War,  even  as  the  smoke  and  horror  and  the  smell  of 
blood  clear  away,  law  resumes  its  sway,  planting  anew  in  a 
bruised  and  bewildered  world  the  standards  of  legality  human 
and  divine.     Oood  are  treatises,  better  are  treaties;  but  the 


LOBD  SHAW.  221 

world  is  a  disillusioned  world  and  it  has  grown  tired  of  them. 
It  longs  for  facts^  some  solid  ground  in  which  the  law  can 
have  its  chance  unless  good  faith  be  banished  from  the  earth. 
Something  accomplished,  something  done,  something  well  and 
truly  laid,  something  more  than  diplomatic  gestures  or  a  paper 
pledge;  that  is  what  is  required.  The  nations  have  lost  confi- 
dence in  each  other. 

In  ancient  Borne  the  first  obvious  contracts  were  real  con- 
tract; the  consensual  came  later.  As  the  majesty  of  law  ex- 
tended, the  consensual  contracts  became  common  because  behind 
them  there  lay  the  power  not  only  of  interpretation  but  enforce- 
ment. Believe  me,  until  the  majesty  of  the  law  is  established 
with  similar  powers  of  interpretation  and  enforcement  among 
the  nations,  the  nations  must  begin  again,  they  must  tread  the 
historical  road,  they  must  have  real  contracts,  actual  accomplish- 
ments, things  done  and  things  given  up  on  both  sides,  before 
men  will  believe  that  true  progress  has  been  resumed.  It  is  for 
this  reason,  gentlemen,  that  I  reckon  the  Conference  of  Wash- 
ington to  have  been  greater  than  a  conference,  and  the  Five- 
Power  Naval  Agreement  and  the  Pour-Power  Pact  for  the 
Pacific  Ocean,  the  one  with  its  real,  instant,  and  definite  limi- 
tation of  armaments,  the  other  turning  possibly  this  great  ocean 
into  a  vast  Pacific  reserve — I  reckot  these  things  to  be  a  sensible 
mitigation  of  the  fears  of  humanity,  a  sensible  contribution  to 
the  peace  and  progress  of  mankind.  It  seems  quite  a  natural 
thing  that  after  those  pacific  triumphs  you  should  have  these 
pacific  celebrations.  So  reckoning,  we  heartily  bear  in  mind 
the  services  and  achievements  of  America  in  the  world  cause, 
and  the  firm  and  practical  statesmanship  of  its  President 
and  Secretary  of  State.  Especially  today  do  we  think  of  the  great 
lawyers  of  your  and  many  nations  as  they  went  on  trying  to 
hammer  into  a  solid  fabric  of  results  those  ideals  and  aspirations 
which  all  peoples  cherish  who  claim  the  rank  of  civilized  states. 

These  are  some  of  the  reasons,  Mr.  President,  which  make  me 
feel,  with  a  deeper  note  of  gratitude,  the  historical  interest  of  the 
occasion  on  which  you  have  asked  me  to  address  you. 

Of  course,  when  lawyers  foregather,  they  are  apt  to  confine 
their  discussion  to  the  present,  and  to  the  immediate  future,  and 
to  their  own  very  wide-awake  good  selves.    But  the  strength  of 


222  THE  WIDENING  RANGE  OP  LAW. 

these  great  conferences  is  shown  when  they  have  leverage  enough 
to  get  men  out  of  that  rut.  Occasions  arise  when  history  and 
events  vividly  and  savagely  compel  that.  The  best  amongst  you 
probably  look  back  to  the  later  fifties  and  the  early  sixties — ^that 
trying  ordeal  for  your  citizenship.  Then  it  was  that  the  law  of 
status  and  the  law  of  the  Constitution  had  to  be  co-ordinated, 
and  that  under  the  higher  planes  of  liberty  and  the  rights  of 
man.  Lowell  puts  the  old  view  which  the  older  l^aUty  could 
always  defend.  **  Here  I  stand  on  the  Constitution,  by  thun- 
der'*; 

Human  rights  hai'nt  no  more 

Right  to  come  on  this  floor 

No  more'n  the  man  in  the  moon,  sez  he. 

These  were  defensible,  very  defensible,  propositions  in  the 
mouth  of  a  mere  lawyer,  a  mere  constitutionalist,  a  mere  politi- 
cian, and  Lincoln  was  very  patient  with  them.  But  when  to 
yield  to  them  would  have  been  to  rive  in  twain  the  American 
Commonwealth,  then  his  heart,  always  true,  cleared  his  vision, 
and  he  seemed  to  reason  that  man  was  more  than  constitutions; 
that  the  law  was  made  for  man^  nx)t  man  for  the  law.  So  it  was 
that  the  courage  and  essential  goodness  of  his  statesmanship  and 
the  loyalty  of  your  great  people  to  truth  consolidated  at  one 
stroke  the  cause  of  the  unioi  and  of  human  freedom. 

Then  in  the  common  and  everyday  relations  of  man  with  man 
(and  these  demand  after  all  our  first  regard),  the  range  of  your 
law  became  mightily  extended.  That  law  jof  status,  if  law  it 
could  be  called  which  had  travestied  the  patriarchal  system  and 
would  have  turned  back  even  the  clock  of  Bomou  jurisprudence 
as  it  went  on  opening  more  and  more  widely  the  doors  of  its 
citizenship — that  law  of  a  status  disappeared  and  the  law  of 
contract  took  its  place  over  the  wide  areas  of  many  states.  The 
West  Indian  precedent — ^very  nobly  conceived  and  very  wisely 
accomplished  by  England — was  of  but  slender  proportions,  and 
compares  with  your  struggle  literally  as  an  insular  with  a 
continental  achievement.  Hard  and  difficult  and  many  a^  were 
the  legal  problems  to  be  solved,  I  declare  to  you  that  it  fills  me 
with  wonder  to  reflect  upon  the  comparative  ease  of  the  tran- 
sition, upon  the  adaptability  of  your  legal  machinery,  and  upon 
the  practicality  of  your  people. 


LOBD  SHAW.  223 

This  on  the  civil  side;  but  on  the  criminal  side  yonr  task 
was  greater  stilly  and  it  is  not  yet  complete.  Race,  color,  the 
memory  of  oppression;  these  are  very  real  things  to  be  suddenly 
let  loose  in  a  citizenship  of  freedom.  They  leave  the  lawyer  and 
the  reasoning  citizen  an  irksome  but  a  high  and  responsible 
duty.  And  to  this  hour  a  high  and  responsible  duty  it  remains. 
That  duty  is  to  save  hberty  and  order  alike  by  that  equal  hand 
and  that  noble  and  resolute  bearing  of  justice  itself,  which  are 
shown  by  respect  and  true  fealty  to  the  regular  administration 
of  the  law.  Every  man  his  own  avenger  I  the  sudden  ferocities 
of  lynch  law  I  Wherever  the  English  tongue  is  spoken  the 
ground  is  too  sacred  for  that;  wherever  free  men  reason  together, 
jurisprudence  renders  to  justice  a  sincerer  and  more  stately 
homage. 

A  lesser,  but  yet  quite  notable  extension  of  the  range  of  law 
has  occurred  in  the  emancipation  of  women.  I  presume  that 
you  have,  as  we  have,  Married  Women^s  Property  Acts  with  their 
sequels  social  and  legal.  The  case,  however,  is  not  here  the 
same^as  with  the  enfranchisement  of  the  slave;  it  is  not  the 
substitution  of  the  law  of  contract  for  the  law  of  status;  it  is 
their  reconciliation  with  each  other.  I  daresay  you  find  the 
contract  side  of  it  not  unmanageable,  but — on  the  status  side — 
how.  you  get  along  with  the  variety  of  state  law  and  state  legis- 
lation on  the  subject,  say,  of  divorce,  and  still  keep  your  heads, 
and  are  able  to  attend  to  business — this  fills  me  with  wonder. 

I  know  how  difScult  it  is  to  harmonize  state  laws.  England 
has  been  trying  for  a  generation  to  approximate  to  the  decent, 
sensible,  easily  working  law  of  Scotland  in  this  department  of 
the  matrimonial  relations,  and  as  yet  it  has  failed.  Of  all  the 
forms  of  amour,  the  one  which  is  most  ridiculously  hard  to  ac- 
commodate is  amour  propre.  This  is  certainly  so  among  states 
and  nations;  and  legal  reform  which  points  to  homogeneity  is 
of  the  derided  and  suspect  I  • 

Meantime,  the  range  of  your  laws  for  all  professional  breth- 
ren who  practise  and  advise  must  be  immensely  increased  by 
home-made  difSculties.  And  these,  I  should  reckon,  bring  in 
their  train  a  goodly  store  of  troubles  in  the  regions  of  domicUe 
and  fiuccession.  Is  the  harmonizing  of  your  laws  of  status  a 
vain  dream  for  the  United  States,  an  objectionable  or  imprac- 

8 


224  THE  WIDENING   RANGE  OF   LAW. 

tical  idea?  Pray  forgive  me,  I  do  not  mean  to  intrude,  or 
eren  to  suggest.  But  you  must  take  me  as  I  was  made  and  I 
cannot  help  thinking. 

A  few  brief  words  only,  and  those  of  nothing  but  commen- 
dation of  your  law  of  contract.  In  your  case  it  was  not,  as  in 
the  jurisprudence  of  Bome  or  of  England,  au  evolution  from  a 
rigidity  which  had  grown  barren  to  a  fruitful  flexibility  which 
better  met  the  needs  of  man — ^a  slow,  centuries  long,  education 
and  adaptation.  Tour  jurisprudence  sprang  fully  armed  like 
Minerva  from  the  head  of  Jupiter.  Bather  a  strained  figure 
that  1  For  I  was  meaning  Jupiter  to  represent  the  Common  Law 
of  England,  and  therefore  I  was  referring  to  Jupiter  at  the  time 
he  led  a  decent  life — say,  after  he  had  overthrown  Saturn  and 
before  his  flirtations  began  I  In  this  department  of  jurispru- 
dence, the  law  of  contract,  your  services  have  been  very  real^and 
in  its  literature  almost  monumental.  The  labors  of  Story  lift 
your  representation  to  a  great  height.  And  when  that  gifted, 
brilliant  American,  statesman  and  lawyer,  Mr.  Benjamin,  landed 
on  the  English  shore,  we  received  with  no  grudging  admiration 
his  work  on  Sale;  and  the  man  who  wrote  it  ranked  with  our 
hearty  good-will  among  our  highest  in  the  law. 

I  venture  to  accentuate  this  solidarity  between  England  and 
America  on  Contract  Law.  In  your  case  its  principles  inform 
and  regulate  over  a  vast  and  active  continent  stretching  from 
ocean  to  ocean.  In  our  case  they  interlace  the  world.  Natur- 
ally,  the  same  principles  are  found,  and  possibly  even  better 
co-ordinated,  in  other  lands — say  in  France  imder  the  Code 
Napoleon :  Naturally  they  are  derivative  from  ancient  systems ; 
historically  they  may  be  said  to  have  foimd  luminous  exposition 
by  the  immortal  jurists  of  the  Age  of  the  Antonines,  who  subtly 
threaded  their  way  through  technicalities  into  the  open  air  of 
fair  dealing.  A  claim  of  monopoly  would  be  absurd ;  we  do  not 
set  ourselves  up  as  the  first  and  true  inventors.  But  it  is  ours 
to  acknowledge  and  to  share,  and  over  vast  spaces  of  the  earth 
to  distribute  a  priceless  inheritance,  which  has  helped  to  dissi- 
pate the  misunderstanding,  to  smooth  the  intercourse  and  to 
ihcrease  the  comforts  of  mankind. 

It  is  the  fact  of  this  common  inheritance  which  lays  a  special 
obligation  upon  the  lawyers  of  the  Anglo-Saxon  race.    Between 


LORD  SHAW.  225 

them^  the  United  States  and  the  British  Empire,  largely  shaxe 
the  distribution  of  the  resources  of  the  earth  and  the  manufac- 
ture of  those  resources  for  the  use  of  man.  Take  the  old  Soman 
classification,  if  you  like,  say,  of  the  consensual  contracts :  Sale 
(Emptie-venditio) ;  Agency  (Mandatum) ;  Hiring  (locatiO' 
condudio) ;  and  Partnership  (Sodetas) ,  How  embracive  the 
category  is  I  But  did  ever  the  wildest  dreamer  among  the 
absolutists  of  the  ancient  world  conceive  of  the  vast  fertility  of 
illustration  of  the  items  of  the  list  which  a  new  world  displays  ? 
For  the  emptia-venditio  go  to  your  emporia,  your  bourses,  your 
exchanges.  For  Societas,  watch  your  great  Corporations,  sd 
powerful  as  to  threaten  to  dominate  legislatures  and  states. 
For  Locatio-conductio,  see  your  networks  of  railways,  your 
shipping  enterprises^  your  transport  linking  ocean  with  ocean. 
.  For  mandatum,  your  drummers  drumming  everywhere,  by  land 
and  sea. 

Greater  than  dreams  have  your  enterprises  spread ;  but,  spread 
they  ever  so  far,  one  thing  accompanies  them,  inexorably,  inevit- 
ably, as  shadow  follows  substance.  With  them  all  goes  the  law. 
It  checks  misdeeds,  ensures  equality  of  appeal,  removes  crooked- 
ness and  chicane,  respects  neither  rank  nor  power  as  between 
the  bargainers,  ever  and  everywhere  insisting  on  a  square  deal; 
ever  and  everywhere  taking  its  stand  on  principles  whose  foun- 
dations are  truth  and  whose  comer  stone  is  honesty.  See  how 
glorious  your  profession  is  I  See  how  mistaken  those  are  who 
think  it  outgrown  or  effete!  I  have  a  respect  for  theology;  but 
its  timidities  and  some  of  its  ongoings,  in  times  which  demanded 
plain  and  frequent  ethical  reminders,  have  made  me  not  so  sure 
about  it.  Anyhow,  I  am  venturing  in  your  presence  the  propo- 
sition that  in  this  age  which  so  often  shows  itself  a  brazenly 
material  age  it  is  the  profession  of  the  law  that  is  the  unques- 
tionable instrument  of  an  appeal,  not  to  technique,  not  to  vogue 
or  fkshion  or  more  correctitude,  but  in  the  ultimate  resort  to 
ethical  standards  which  no  age  can  outlive,  and  no  progress  can 
trample  underfoot. 

I  am  not  a  professor,  nor  the  son  of  a  professor,  and  I  claim 
no  title  to  inflict  upon  you  an  address  enumerating  categories 
or  laying  out  elaborate  parallels.  I  have  not  learning  enough  to 
speak  to  learned  men  didactically,  but  one  cannot  have  lived 


i  226  THE  WIDENDrO  RANOB  Oi?  LAW. 


through  a  long  and  varied  professional  life  withont  certain 
things  having  stood  out^  as  able  to  stand  the  test  of  experience^ 
as  very  real  and  on  the  whole  very  helpful  things.  My  only 
wish  is  to  speak  to  you  today  more  by  way  of  simple  contributing 
to  the  common  stock  of  ideaa  which  we  put  into  our  mutual 
exchange.  Therefore  I  do  not  presume  to  dwell  much  further 
on  the  Law '  of  Contract  or  to  pass  definitely  to  propositions  on 
other  definite  sections  of  the  law.  Let  us  simply  go  on  thinking 
together. 

It  does  strike  me^  for  instance,  that  apropos  not  of  contract 
alone,  but  of  many  other  branches  of  the  law,  there  is  a  two-fold 
development  which,  having  a  historical  origin,  is  very  notable  and 
very  wholesome  in  our  own  time.  The  age  has  gone  by  for 
symbolical  and  ceremonial  procedure  which  has  lost  its  useful- 
ness and  meaning.  In  regard  to  the  sale  of  real  estate  what 
changes  have  occurred  even  in  my  time!  As  a  boy,  I  have 
copied  out  deeds  which  have  narrated  with  precise  notarial  detail 
how  seisin  was  given — actually  given — ^for  lands  by  handing  over 
earth  and  stone,  for  mills  by  the  giving  of  clap  and  happer,  for 
houses  by  hasp  and  staple,  for  fishings  a  net,  for  annual  rents 
a  penny,  each  tangible  thing  sold  having  its  tangible  sample 
and  symbol  which  made  visible  the  entry  of  a  new  owner  and 
possessor.  The  appeal  to  the  sense  was  plain :  The  notary  certi- 
fying "  vidi,  sdvi,  et  andvoi,"  with  lots  of  other  Latin  added — 
or  a  raw  and  canine  order.  Nowadays,  the  substance  of  sale 
remains,  but  the  symbolism  of  the  real  contract  has  passed  away. 
The  literal  contract  has  been  reached,  and  all  stands  alone  upon 
the  written  word.  Now  turn  this  matter  about.  From  the  real 
contracts  where  more  than  the  written  word  was  required;  look 
now  at  the  purely  consensual  contracts  which  required  no  writing 
at  all.  The  means  for  the  transmission  and  record  of  thought 
have  now  vastly  changed  from  the  day  when  the  Boman  pain- 
fully recorded  the  literal  contract  with  his  stilus  on  a  tablet  of 
wax.  Then  consensual  contracts  stood  a  great  way  apart  from 
literal.  But  now,  with  the  spread  of  education  and  the  advance 
of  science,  the  use  of  letter,  of  telegram  and  of  the  telephone 
message  confirmed  by  the  business  man's  note — all  these  lift  the 
bulk  of  the  consensual  contracts  into  the  grip  of  a  literal  record, 


LOBD  SHAW.  2S7 

and  that  so  effectively  that  one  may  explain  the  record  if  it  be 
ambiguoua^  but^  if  not,  one  must  stand  to  it,  and  to  vary  it  is 
bad  law. 

From  these  two  directions  accordingly,  the  one  where  all  was 
form  and  ceremony,  the  other  where  there  was  the  spoken  word 
alone,  the  force  of  the  legal  pressure  of  later  days  has  be^i 
concentrated  upon  the  construction  and  interpretation  of  the 
written  word.  This  is  so  in  a  sense  applicable  far  beyond  the 
range  of  individual  bargains  and  covering  not  them  alone  but 
writings  of  aU  kinds,  wills  and  settlements,  deeds  of  gift,  and 
trusts;  higher  still  articles  of  association  and  prospectuses;  higher 
still  legislative  acts  and  statutes  themselves ;  and  then  still  higher 
the  constitutions  of  states  and  provinces,  of  dominions  and  com- 
monwealths. 

« 

There  thus  come  into  the  literature  of  law  powerful  and 
profound  books,  and  a  wealth  of  cases  so  perplexing  as,  if  yielded 
to,  would  drive  analysis  to  the  point  of  contortion  and  the  lawyer 
or  student  to  confusion  and  sheer  mystification  of  mind.  It  is 
so  in  the  humble  and  ordinary  life  of  the  practitioner.  As  the 
range  of  law  widens  and  arises,  then  the  clash  of  interests  and 
the  intrusion  of  prejudices  social  and  national  and  international, 
are  apt  to  disturb  fair  judgment  and  all  this  makes  a  grounding 
in  the  principles  of  true  interpretation,  imperative  as  a  salvation 
from  sheer  mischance  of  such  a  nature  were  the  problems  which 
confronted  the  greatest  of  American  jurists  John  Marshall; 
and  his  masterly  solutions  lifted  the  office  of  Chief  Justice  of  the 
United  States  high  among  the  great  places  of  the  center  and 
tinked  it  for  ever  with  his  name.  When  you  consider  what  the 
handling  of  these  problems  means  in  the  equipment  of  the 
human  mind,  then  you  get  some  light  on  the  phenomenon  that 
in  all  ages  and  in  nearly  every  country  the  profession  of  the 
law  gives  its  quota  of  power  to  statesmanship  and  public  life. 
Exposition  is  the  skill  of  the  lawyer;  enforcement  is  his  art; 
but  interpretation  is  the  foundation  of  his  science. 

To  get  at  the  essential  meaning  which  the  words  under  con- 
struction signify  is  a  psychological  exercise  far  too  little  appre- 
ciated. It  is  in  modem  as  in  ancient  times,  -there  are  serious 
obstacles  to  getting  at  the  true  interpretation  of  disputed  words. 
In  ancient  times  the  obstacle  was  formality — ^in  modern  times 


228  THB  WIDENING  RANOB  OF  LAW. 

it  is  authority.  A  consensus  ad  idem  did  not  of  old  get  into  the 
region  of  discussion  until  a  minute  examination  had  been  made 
into  the  forms  and  ceremonies  in  which  it  had  been  clothed. 
Did  these  f ail^  as  the  law  prescribed,  then  the  examination,  the 
true  interpretation,  ended  before  it  had  begun.  These  hare 
now  largely  disappeared  from  the  ground.  But  in  their  place 
and  now  for  generations  in  their  place  has  grown  up  a  new 
obstacle^  thick  as  the  jungle.  The  words  haye  already  been  in 
the  hands  of  the  judicial  commentators;  and,  as  is  the  way  with 
commentators,  the  one  refers  to  the  other  and  the  third  to  the 
preceding  two  till  the  text  is  obscured  aad  the  vision  of  the 
interpreter  cannot  get  through  the  thicket  except  at  the  risk  of 
his  being  considered  a  rebel  and  iconoclast.  Any  recent  statute 
forms  an  illustration  ready  to  hand.  Hardly  is  it  bom  into 
the  world,  till  judges  fall  upon  it,  tearing  it  analytically  to 
pieces;  and  unless  they  called  it  at  least  inartistic  they  would  not 
be  in  the  fashion  I  But  then  their  turn  comes;  and  their  fre- 
quent Unes  of  error  are  produced  and  produced  with  a  touching 
deference,  till  by  and  by  the  plain  English  of  the  act  does  not 
know  itself ;  and  only  great  judges  take  the  liberty  to  announce 
that  the  act  means  what  it  says.  If  you  have  in  your  great 
country  statutes  like  the  Employers  Liability  Acts  and  the 
Workmen's  Compensation  Acts,  such  as  we  have  in  ours,  you 
may  have  an  inkling  of  my  meaning. 

The  danger  of  obscuring  the  text  by  the  commentaries  is  not 
confined  to  statutes  of  the  realm.  It  appears  over  and  over 
again  in  humbler  and  more  homely  spheres.  Particular  words 
of  a  will  in  a  certain  context  are  interpreted  to  mean  one  thing 
and  it  is  so  decided;  then  the  same  words  in  quite  a  different 
context  are  held  to  mean  the  same  thing,  because  it  has  been  so 
decided.  Thus  so-called  rules  of  construction  are  formed — ^the 
rule  in  this  case  or  the  other — and  they  are  applied,  amidst 
difSculties  which  no  well-instructed  practitioner  daxe  avoid,  al- 
though he  and  everyone  else  knows  that  the  meaning  put  upon 
words  is  very  different  from  what  it  would  have  been  if  the 
ground  had  only  been  clear. 

I  have  observed  with  no  little  satisfaction,  in  recent  years, 
a  more  determined  effort  towards  reversion  to  the  text  itself, 
and  a  desire  to  avoid  shackling  the  ordinary  English  language 


LOBD  8HAW.  229 

with  conventional  fommlfle.  A  conyenient  illustration  of  what 
I  mean  occurred  no  later  than  last  year  in  the  case  of  Lucas 
Tooth.  It  appeared  that  the  ordinary  expression^  the  simple 
word  ''  then/'  had  been  the  subject  of  repeated  decisions  and  so 
had  been  given  a  cast-iron  and  conventional  turn.  One  noble 
Lord  stated  thus  the  tendency  upon  which  I  have  been  venturing 
to  reflect: . 

When  a  category  or  enumeration,  ventured  upon  even  by  high  author- 
ity, is  sought  to  be  imposed  upon  a  simple  and  oonunon  word  of  the 
Fngli<ib  language,  courts  of  interpretation  must  preserve  their  freedom 
of  contact  with  toe  mind  and  meaning  to  be  interpreted,  that  mind  hav^ 
ingused  the  medimn  of  unartificial  and  ordinary  speech. 

\Vords  themselves  change  in  meaning ;  even  punctuation,  or  the  order 
in  which  tfcdnes  are  set  down  may  have  its  significance;  ana  the  nuances 
of  expression  have  an  infinite  variety.  Out  of  the  categories  or  generali- 
sations you  may  no  doubt  construct  a  machine  which  would  stamp 
ordinary  words  with  a  meaning  which  their  author  would  promptly 
disavow.  The  generalization  becomes  a  category,  the  categorsr  becomes 
a  rule,  and  the  rule  becomes  a  bed  of  Procrustes  upon  wmch  words 
and  expressions  must  be  stretched,  but  which,  as  one  is  unhappily 
conscious,  they  can  only  Be  made  to  match  by  torture  or  by  mutilation. 
The  meaning  of  the  testator  is  not  thus  reached,  and  misinterpretation 
results. 

The  case  of  Procrustes  occurs  often  enough.  The  literalisty 
very  loyal  to  authority,  stands  within  it  as  within  a  fortification. 
If  you  tell  him  that "  the  letter  Idlleth  but  the  Spirit  giveth  life  ^' 
he  asks  you  for  the  reference;  and  then^  when  you  give  it^  he 
says  that  he  has  not  got  the  book  in  his  library.  Tet  must  it  not 
be  true  that  wherever  that  spirit  has  been  violated^  then  it  stands 
to  reason  that  some  element  of  mischance  may  have  crept  in? 
Alas !  in  this  world  the  smooth  has  to  be  taken  with  the  rough, 
and  literalism  with  its  mischances  haa  the  merit  at  least  of  bind- 
ing judges  and  interpreters  to  construct  the  actual  terms  em- 
ployed, without  daring  to  invent  for  themselves  another  mean- 
ing not  out  of  the  grantor's  words  but  out  of  their  own  head. 

I  grant  that  point;  but  when  that  is  granted  all  is  said  in 
favour  of  the  Procrustes  method.  VHiat  then,  gentlemen  of 
the  Bar,  what  is  to  be  done?  Struggle  and  wrestle  you  must 
with  these  difiSculties,  sometimes  on  an  immense  scale.  Take 
my  advice :  the  figure  in  mythology  which  will  help  you  most  is 
not  Procrustes  the  tyrant  of  the  iron  measure,  but  a  giant  and 
a  stmggler  like  yourselves,  by  name  Antaeus.  According  to 
tradition  he  was  a  great  fighter.  He  overcame  and  subdued  all 
enemies,  but  the  secret  of  his  power  was  that,  being  the  son  of 


230  THE   WIDENING  RANGE  OP  LAW. 

Neptune  and  Terra,  of  ocean  and  of  Earth,  he  kept  his  feet  in 
touch  with  mother  earth  and  thus  found,  at  every  crisis  of  battle, 
refreshment  and  new  life.  Finally  he  was  overthrown;  but 
Hercules  could  not  have  accomplished  the  task  except  by  lifting 
him  from  the  earth  and  squeezing  him  to  death  in  the  air. 
There  is  our  lesson  as  interpreting,  constructive  lawyers.  Let 
us  keep  in  touch  with  mother  earth.  Do  not  let  any  Hercules  of 
convention  lift  us  from  that  ground  of  common  sense  to  which 
we  owe  all  that  strengthening,  all  that  re-invigoration,  all  that 
vitality  which  nerves  us  in  the  struggle.  So  surely  as  we  shall 
be  lifted  above  the  realities  of  the  case,  then  so  surely  shall  we 
be  overcome.  Stand  squarely  on  the  solid  ground  of  mother 
earth;  even  in  the  struggle  where  many  authorities  are  heaved 
at  you  and  many  rules,  and  the  wisdom  of  many  ancients  are 
fired  at  you  to  blow  you  into  the  air,  stand  firm,  and  you  will 
grapple  with  all  these  assailants  and  all  their  weapons.  In  the 
end  you  will  triumph  by  the  strength  of  vision  which  has 
enabled  you  to  see  beneath  decided  cases  their  true  essential 
meaning  and  to  test  authority  even  in  its  highest  decisions,  not 
by  head  notes  or  rubrics,  but  by  the  fundamental  principles 
rooted  in  reason  and  grounded  in  sense  which  in  the  particular 
case  they  purported  to  expound. 

Yes,  there  have  always  been,  and  to  this  hour  there  are,  two 
schools  in  jurisprudence;  the  school  of  Procrustes,  and  the 
school  of  Antaeus.  I  suppose  the  tyrant  Procrustes  had  his 
uses  although  I  have  never  had  much  favor  for  him.  But  An- 
tseus  guides  the  whole  life.  The  lesson  of  his  strengthening 
contact  with  reality  is  a  lesson  forever. 

This  determined  loyalty  to  sense  of  truth  never  degrades  but 
always  adorns  the  law.  This  it  is  which  is  the  death  of  trickery, 
which  is  the  searching  out  and  the  stamping  underfoot  of  fraud, 
which  is  the  unravelling  of  the  dexterities  of  deceit,  which  is  the 
homage  to  justice  which  underlies  every  act  of  a  professional 
man.  No,  in  this  enterprise  of  searching  for  truth,  no  greater 
advances  have  been  made,  probably  in  any  age,  than  in  our  own 
time.  But  beneath  it  all  there  lies  that  essential  fundamental 
fact  to  which  I  have  alluded,  that  there  are  standards  of  inter- 
pretation which  are  solid  and  infallible,  and  any  resort  reached 
even  by  the  most  casuistical  interpretation  which  varies  these 
standards  is  a  line  which  leads  to  loss  and  misery  and  wrong. 


LOBD  SHAW.  281 

Upon  this  topic,  one  department  of  law  to  which  I  specially 
refer  is  that  in  regard  to  the  rescission  of  contracts.  In  Scot- 
land it  is  called  a  reduction^  and  until  a  few  years  ago  it  was 
expressed  in  an  emphatic  redundancy  worthy  of  the  Schoolmen 
of  the  middle  ages.  The  will  or  testament,  a  contract^  a  gift,  or 
what  not  was  to  be  '^reduced,  retreated,  rescinded,  cassed,  an- 
nulled, decerned  and  declared  to  have  been  from  the  beginning, 
to  be  now,  and  in  all  time  coming  of  no  avail,  force  or  effect  in 
judgment  or  out  with  the  same  and  the  defender  reponed  there 
against  in  integrum.'^ 

ITow  was  not  that  a  mouth  filler?  And  many  a  battle  has 
been  waged  over  the  issue  which  it  raised.  You  know  the  sort 
of  inquiry  to  which  I  refer.  Many  of  you  have  no  doubt  had 
enthralling  adventures  in  that  line.  The  whole  department  is 
founded  on  the  simple  proposition  that  a  thing  which  is  essen- 
tially a  wrong  as  between  man  and  man  should  not  stand.  I  do 
not  enter  into  the  refinements  as  to  the  declaration  in  one  case 
as  to  whether  the  deed  or  document  is  ipso  jure  void  or  whether 
it  it  only  voidable.  I  am  upon  things  much  more  fundamental 
than  that.  The  categories  of  fraud,  of  concealment  of  essential 
particulars  by  one  party  from  the  knowledge  of  the  other,  of 
duress  in  the  sense  either  of  actual  '^  force  and  fear'^  or.xmdue 
infiuence  by  such  predominance  of  the  will  of  one  party  over 
that  of  the  either  as  to  make  the  latter  not  a  free  agent,  all  that 
set  of  causes  which  comes  before  the  courts,  are  the  assertion  of 
one  fundamental  principle.  That  principle  is  that  law  will 
not  recognize  if  it  can  avoid  it,  any  act,  agreement,  contract  or 
obligation  unless  these  are  acts  of  men  who  were  both  truly 
sane  and  truly  free.  Justice  becomes  the  handmaid  of  truth, 
jurisprudence  the  vindicator  of  freedom. 

The  essential  privilege  of  law  is  to  defend  the  canon  of  its 
equality — ^namely,  that  all  must  have  equal  treatment  by  the 
law,  as  the  broad  inevitable  resultant  right  of  free  citizenship. 
When  every  citizen  can  truly  feel  that  the  law  can  be  appealed 
to  as  his  friend,  then  strength  and  healing  come  into  the  body 
politic  and  the  function  of  law,  even  on  the  every-day  level  of 
individual  disputes  and  of  differences  between  man  and  man, 
adds  to  the  healthy  sense  of  independence  which  is  the  essential 
of  progress.     But  whenever  men,  decent  men,  not  rebels  or 


832  THB  WIDBNINQ  BANGS  OF  LAW. 

criminals^  cower  beneath  the  law,  being  afraid  of  its  inequality; 
Baying  to  themselves  "  the  world  is  not  my  friend,  nor  the  world's 
law,''  then  they  become  the  starved  apothecaries  of  society  and 
are  tempted  to  meannesses  and  evil  ways.  And  that  society  is 
rotten  where  one  citizen  as  against  another  can  overpower  him 
or  undermine  him  by  law  wielded  with  an  uneven  hand.  Only 
the  blind,  the  cruel,  or  the  unjust  in  heart  can  wink  the  eye 
at  this  unnameable  curse. 

Probably  upon  this  continent,  great  as  it  is,  you  do  not  recog- 
nize that  wide  plane  of  equality  to  which  I  refer.  It  is  your 
privilege  to  distribute  justice  to  that  marvellous  agglomeration 
of  races  which  America  has  taken  t6  her  broad  bosom.  She 
speaks  to  them  the  English  tongue;  she  nourishes  and  educates 
them  in  the  practices  of  freedom,  she  inducts  them  into  that 
fundamental  respect  for  organized  society  which  only  law  can 
conserve :  Above  all  no  race,  religion,  color,  origin,  dare,  arrest 
or  deflect  the  course  of  justice.  All  alike  are  equal  before  the 
law.  These  every-day  things,  the  straight  deal,  the  even  hand  so 
commonplace  are  they  that  one  is  apt  to  lose  the  sense  of  their 
enormous  power. 

From  every  disorganized  quarter  of  the  globe  this  rich  land 
becomes  a  refuge  in  which,  to  its  astonishment,  right  becomes  a 
real  possession,  maintained  unfalteringly  between  the  highest 
and  the  lowest,  the  richest  and  the  poorest,  and  the  appeal  to 
law  is  itself  a  right  universal.  But  when  I  speak  in  these  high 
terms  of  freedom  and  independence,  of  equality  and  right,  as 
they  are  known  within  your  borders,  I  cannot  restrict  my  vision. 
My  own  experience  forbids  me.  Next  week  I  shall  have  to  ad- 
dress the  Bar  of  Canada  on  particular  problems  connected 
with  the  administration  of  Justice  by  the  Judicial  Committee 
of  the  Privy  Council.  The  jurisdiction  of  that  body  extends 
over  one-fourth  of  the  population  of  the  globe;  the  jurisdiction 
of  your  Supreme  Court  added  to  that  makes  the  principles  of 
our  laws  cover  nearly  one-third  of  the  human  race.  But  how 
wide  soever  may  be  the  range,  you  and  we  recognize  that  this 
is  not  a  question  of  what  race,  creed,  nationality  or  people,  law 
is  to  be  applied  to.  It  is  a  question  fundamental  to  the  admini- 
stration of  widely  different  laws  and  systems  of  jurisprudence, 
some  modem,  some  traditional,  some  tribal,  some  as  old  as 


LOBD  SHAW.  233 

recorded  history,  wherever  a  system  of  law  or  jurisprndence  is 
worthy  of  the  name  these  fundamental  principles  and  especially 
this  canon  of  fair  and  equal  treatment  must  apply. 

Now  that  I  am  upon  this  topic  of  what  I  may  call  the  funda- 
mentals of  law,  its  deep  basic  universal  principles,  I  recognize 
too  well  the  needs  -of  the  occasion  and  the  limitations  of  my 
own  capacity  to  venture  upon  a  detailed  or  didactic  exposition 
of  a  subject  so  large  and  grave. 

But  as  we  go  on  thinking  together,  would  you  suffer  from 
me  this: 

Having  had  to  study  for  many  years  the  clash  of  opinioh 
and  the  collision  of  interests,  not  alone  between  individual  men 
but,  on  a  higher  range,  between  classes  of  society,  and,  on  a 
still  higher,  between  state  and  commonwealth,  between  province 
and  dominion,  do  let  us  hear  in  mind  the  correlations  of  things. 
If  the  correlations  of  things  be  truly  grasped,  then  the  very 
secret  of  justice  has  been  unveiled. 

Let  me  try  to  explain  to  you  what  I  mean  by  this.  The  ideals 
have  in  them  nothing  abstruse,  nothing  revolutionary,  and,  as 
you  know,  there  is  nothing  new  under  the  sun.  If  any  of  you 
smell  Hegel  and  German  philosophy  about,  I  cannot  help  that. 

Take  that  thing  which  we  call  a  man's  right.  He  ought  to 
be  able  to  vindicate  it  against  all  the  world.  But  one  imperious 
and  resounding  prohibition  is  laid  upon  him ;  he  cannot  take  the 
law  into  his  own  hand.  And  well  he  knows  if  he  thinks  of  his 
own  right  and  of  himself  alone,  and  begins  to  exercise  it  with 
that  sole  idea,  then  collisions  will  take  place,  he  will  encounter 
surprises  and  mishaps  and  he  will  come  to  grief.  What  has 
happened  to  him?  He  has  forgotten  that  the  correlative  of 
right  is  duty.  Sic  utere  tuo  id  alienum  non  Icsdas,  But  the 
law  does  not  forget  it.  And  that  law  which  he  dare  not  take  into 
his  own  hand  as  a  master  he  can  appeal  to  with  the  submissive 
mind.  For  justice  exists;  that  austere  reconciler  of  right  with 
duty.  As  deep  and  elementary  as  the  distinction  in  philosophy 
between  the  ego  and  non-ego,  is  the  broad  plain  fact  that  there 
are  others  in  the  world  besides  the  appellant  who  also  have 
rights,  and  that  the  interdependence  of  rights  and  their  poise 
and  balance  with  duties  is  secured  by  the  arbitrament  of  a  third 
principle,  namely,  justice  itself.    Justice  conserving  the  rights 


234  THB   WIDENING  RANGE  OF   LAW. 

of  all,  and  commanding  the  duties  of  all,  issues  its  decree  that 
right  and  duty  must  dwell  together  in  the  peace  of  mutuality. 
In  this  mutuality  of  rights  and  of  duties  both  can  be  evolved 
into  that  glorious  harmony  wherein  law  is  vindicated,  force 
restrained  and  progress  possible,  and  peace  among  men  the 
every-day  achievement  of  social  life. 

Do  not  please,  be  superior  to  these  views  about  the  correlation 
of  ideas.  You  may  find  before  we  have  done  with  them  that  they 
have  a  far  reach. 

Let  us  now  leave  the  ground  floor,  on  which  are  exhibited 
those  ordinary  difl5culties  which  demand  solution  and  settlement 
between  citizens  in  ordinary  life.  Let  us  ascend,  taking  our 
principles  with  us — always  doing  that — into  the  higher  and 
wider  regions  of  the  relations  of  class  with  class,  religion  with 
religion,  party  with  party,  political,  economic,  industrial.  Here 
in  a  moment  we  feel  the  need  of  principles  and  the  supreme 
usefulness  of  those  in  this  wider  air.  Here  again,  I  repeat  it, 
do  not,  please  do  not  forget  the  correlatives.  As  on  the  more 
ordinary  level  the  plainest  correlation  was  between  right  and 
duty,  now  a  further  correlation  has  appeared — the  correlation 
of  order  with  liberty. 

Disputes  among  classes  are  wider  in  scale,  often  more  sinister 
in  the  appeal  both  to- force  and  to  prejudice  and  more  dangerous 
to  society  at  large.  But  the  figure  which  must  now  stand 
''  betwixt  the  fell  incensed  points  of  mighty  opposites '' — is  still 
as  before  the  same  august  figure  of  justice  itself,  with  law  as  its 
instrument  of  reconciliation. 

Again  the  temptation  is  great  to  exult  in  liberty  and  to 
achieve  its  own  rights  at  its  own  hand.  The  temptation  is  vastly 
reinforced  by  combination,  and  sheer  lawlessness  gets  many  to 
defend  it. 

Something  has  been  forgotten  in  all  this,  namely,  a  correla- 
tive, and  the  correlative  of  liberty  is  order.  Society,  however, 
even  in  convulsion  demands  that  neither  class,  religion  nor 
party  shall  be  denied  freedom,  that  that  freedom  is  a  noble 
thing,  so  noble  that  the  freedom  of  all  must  be  protected  by 
the  freedom  of  each  being  exercised  within  the  limits  of  public 
order.  And  so  freedom  and  order  are  made  to  dwell  together, 
and  the  opposites  are  correlated  by  a  third  entity,  that  austere 


LOBD  shaW.  236 

reconciled  justice,  and  society  is  saved.  The  brutalities  of  force 
are  subdued,  the  widespread  miseries  and  sorrows  of  combatant 
and  non-combatant  alike  are  assuaged — ^these  yield  to  the  arbi- 
trament of  reason.  The  submission  is  made  to  justice  and  to  law 
under  appeals  which  are  oftentimes  conducted  on  both  sides  with 
the  most  accomplished  skill.  I  can  in  my  own  experience  as  an 
arbitrator  testify  to  this  at  first  hand.  * 

The  range  of  law  on  this  higher  level  is  wider.  Sometimes 
the  texts  of  statutes  are  cited,  sometimes  the  rules  of  common 
law  or  even  its  procedure;  but  everywhere  and  always  those 
principles  are  appealed  to  which  give  equality  of  treatment,  the 
just  poise  and  balance,  the  rights  of  each  to  be  duly  respected, 
the  duties  of  each  to  be  faithfully  performed,  under  conditions 
of  discipline  which  will  yet  preserve  freedom  unimpaired,  but 
make  it  a  well-ordered  freedom.  And  above  and  around  and 
beneath  all  an  undying  homage  must  be  paid  to  the  eternal 
principles  of  justice  and  the  square  deal. 

To  each  class  equal  law  must  be  applied.  To  take  an  illus- 
tration, once  an  agreement  is  reached  under  free  and  orderly  and 
equal  conditions  such  as  would  sustain  an  agreement  on  the 
principles  of  law,  the  duty  of  the  employer  to  pay  and  the 
right  of  the  worker  to  receive  wages  as  per  the  agreement  and 
these  to  the  last  cent,  and  the  right  of  the  employer  to  receive 
and  the  duty  of  the  ;(vorker  to  give  work  as  per  the  agreement 
and  that  to  the  last  minute.  To  neither  is  chicane  or  adultera- 
tion permitted.  The  worker  gives  true  and  not  adulterated 
labor;  the  master  gives  true  and  not  adulterated  coin.  The  true 
metal  on  either  side;  no  alloy;  no  quibbling;  honesty  forbids. 
Be  very  frank  and  fearless  about  this.  N"o  liberty  of  any  class, 
no  discipline  by  any  class  can  evade  this :  The  attempt  whether 
by  intimidation  or  force  on  either  hand  is  tyranny;  honesty 
forbids. 

I  take  no  gloomy  view  of  all  this.  For  I  recognize  that  more 
and  more  as  moral  and  economic  education  proceeds,  the  ranks 
of  all  classes  are  coming  to  recognize  that  the  way  both  of 
prosperity  and  peace  lies  in  the  recognition  of  those  standards 
which  are  at  once  ethical  and  legal  standards. 

Every  other  weapon  breaks  in  pieces  or  explodes  in  self- 
destruction.    And  every  one  that  wields  it,  as  is  th^  d^  in 


836  THE  WIDENING  RANGE  OF  LAW. 

Russia  today^  from  the  despot  doctrinaire  downwards  to  the 
famished  dying  innocent  millions,  every  one  must  sooner  or 
later  feel  that 

Tis  safer  to  be  that  which  we  destroy 
Than  by  destruction  dwell  in  doubtful  joy.  / 

Time  was  when  the  so-called  governing  classes  called  for  disci- 
pline^ f 09  order^  order  and  more  order,  with  a  gibe  and  a  blow 
on  the  head  for  liberty  whenever  it  appeared.  That  was  the 
despot's  code.  And  then  the  time  comes  when  the  vaunted  order 
is  overthrown  by  those  very  forces  of  liberty  which  it  was  trying 
to  repress. 

Then  another  era  arises,  and  liberty  has  its  spell  of  excess, 
breaking  up  all  order  in  its  early  headlong  career,  then  liberty 
breaks  into  anarchy,  and  falls^  groping  after  order,  into  the 
cruellest  of  despotism  and  in  a  whirligig  of  inconsequence  liberty 
itself  has  been  destroyed.  Yes:  "these  violent  delights  have 
violent  ends.'*  The  times  move  fast  and  with  tragic  steps. 
Witliin  one  decade  and  within  one  land  the  world  has  had  the 
transitions  from  autocracy  to  Bolsheyi^m.  It  has  been  seen  how 
order  and  liberty  are  both  needed  by  mankind;  both  must  live, 
or  each  will  fall  to  pieces.  And  the  last  of  calamities  will  have 
come,  because  society  will  have  forsaken  justice,  justice  equal 
to  all  men  and  to  every  class,  justice  the  reconciler.  Burke's 
was  a  great  saying :  "  Liberty  to  be  enjoyed  must  be  limited  by 
law;  for  where  law  ends  there  tyranny  b%ins;  and  the  tyranny 
is  the  same  be  it  the  tyranny  of  a  monarch  or  a  multitude ;  nay, 
the  tyranny  of  the  multitude  may  be  the  greater,  since  it  is 
multiplied  tyranny.'' 

As  in  the  humbler  sphere  where  the  law  knows  neither  rich 
nor  poor,  so  among  classes  the  law  knows  neither  high  nor  low, 
supreme  or  struggling,  influential  or  humble,  and  deals  with  all 
with  an  equal  hand  and  an  equal  mind.    Without  that  there  can 

,  be  no  democracy  of  free  men,  for  that  unnameable  thing,  cor- 
ruption, can  cause  society  to  rot.    Give  what  name  you  like  to 

•  the  colliding  forces,  call  one  organized  labor  and  the  other 
organized  capital,  law  in  the  administration  of  justice  knows 
neither  the  one  nor  the  other.  The  humblest  organized  workers 
have  equal  rights  themselves,  not  only  against  organized  capital, 
but  against  the  organizations  of  their  own  class. 


LOBD  8HAW.  937 

When  claisses^  however^  axe  divided  against  classes^  then  too 
often  a  more  serious  trouble  appears.    It  is  not  now  the  applica- 
tion of  legal  principles — ^those  of  justice :  It  is  the  abjuring  of 
legal  methods — ^those  of  reason.    The  awful  collision  has  come — 
the  collision  between  power  and  reason,  between  class  despotism 
and  tyranny  on  the  one  hand,  and  freedom  and  equality  on  the 
other.    The  cardinal  principle  is  the  appeal  to  justice — each  of 
its  class  has  its  rights  against  the  other^  each  of  its  class  has  its 
duty  to  the  other  in  asserting  the  rights  and  in  performing  the 
duties,  each  has  its  liberty  of  assertion  but  each  in  the  perform- 
ance of  its  duty  must  be  restrained  by  that  order  which  ensures 
the  liberty  of  all.    It  is  indeed^  gentlemen  of  the  American  Bar 
Association,  a  tough  nut.    The  appellants  in  the  case  are  truly 
not  one  class  against  another,  but  society  against  both.    Over 
all  classes  as  over  all  individuals,  the  whole  body  politic  must 
assert  the  law,  a  law  for  all  alike,  a  defence  and  a  security  for 
human  society  itself.    Against  this  even-handed  justice  no  isms 
and  shams  can  prevail,  laborism,  capitalism,  bourgeoisie,  plutoc- 
racy, proletariet,  all  these  are  the  forms  and  shows,  the  red  rags, 
the  drums  and  trumpets;  the  substance  of  the  issue  is — shall 
freedom  and  order  live  together,  shall  right  and  duty  respect 
each  other  ?    And  shall,  lastly,  the  method  of  settlement  and  the 
solution  of  these  eternal  problems  lie  with  the  brutality  of  force, 
or  with  the  ministry  of  substantial  reason.     With  its  whole 
power  law  supports  the  latter,  and  in  this  noble  service  to  human- 
ity it  dare  scrap  neither  its  principles  nor  its  methods.    In  fair 
weather  or  in  foul  it  will  abjure  the  brutality  of  force;  it  will 
uplift  the  juster,  humaner,  diviner  ministry  of  reason,  and  in 
this  the  law  as  with  a  crowning  consecration  demands  the 
homage  of  the  soul. 

That  very  fine  thinker  and  eloquent  man  Sir  James  Mackin- 
tosh would,  I  feel  sure,  have  agreed  with  this;  and  he  expresses 
his  ideas  with  a  very  stately  diction.  *' There  is  not,*'  s^ys  he, 
**  in  my  opinion,  in  the  whole  compass  of  human  affairs,  so  noble 
a  spectacle  as  that  which  is  displayed  in  the  progress  of  juris- 
prudence; where  we  may  contemplate  the  cautious  and  unwearied 
exertions  of  a  succession  of  wise  men  through  a  long  course  of 
aged,  withdrawing  every  case  as  it  arises  from  the  dangerous 
power  of  discretion,  and  subjecting  it  to  inflexible  rules — ex- 


238  THE  WIDENING  RANGE  OF   LAW. 

tending  the  dominion  of  justice  and  reason  and  gradually  con- 
centrating, within  the  narrowest  possible  limits,  the  domain  of 
brutal  force  and  arbitrary  will/' 

So  far  for  the  correlation  of  ideas — right  and  duty,  order  and 
freedom.  They  are  regulative  in  the  individual  and  the  social 
relations;  but  they  are  appUcable  in  much  more  extended 
quarters  than  the  bounds  of  one  nation,  they  invade,  they  must 
invade  the  international  sphere.  So  widening  is,  must  be,  the 
range  of  law. 

Let  us  proceed,  however,  to  consider  quite  another  and  a  very 
different  topic,  and  so  approach  the  higher  region.  Not  corre- 
lations now  but  collisions.  Not  correlations  of  ideas  but  colli-> 
sions  of  method.  Here  is  no  blending,  no  co-ordination,  no  com- 
promise. It  is  war  to  the  knife — ^war  between  the  method  of 
force  on  the  one  hand  and  the  method  of  reason  on  the  other. 
Reason  and  force  since  the  world  began  have  been  in  grips. 
When  the  former  has  prevailed  the  majesty  of  the  law  has  been 
justified.  When  the  latter  has  prevailed  civilization  has  been 
wounded,  the  estimate  of  human  life  has  been  lowered,  the 
achievements  of  mankind  have  been  destroyed,  and  law  itself 
has  fallen  from  its  high  estate,  dethroned,  brutalized  and  then 
trampled  imderfoot. 

In  every  range  of  law,  from  the  humblest  to  the  highest,  this 
operates.  When  the  superior  in  position,  in  influence,  in  num- 
bers, in  adherents  or  in  rank  takes  the  law  into  his  own  hands, 
then  the  insistence  of  the  domination  of  force  over  reason  is 
promptly  illustrated,  and  the  private  wrong  calls  aloud  for  legal 
redress.  But  the  rejection  of  the  domination  of  force,  the  taking 
of  law  into  its  own  hand,  applies  not  to  individuals  alone  and  on 
the  higher  range  to  classes  of  society,  but  it  applies  still  higher; 
all  nations,  sooner  or  later,  who  in  this  collision  between  force 
and  law  prefer  domination  and  power,  come  to  a  miserable  end ; 
they  that  use  the  sword  perish  by  the  sword.  Law  reaches  up  to 
this  higher  level,  and  as  the  years  go  forward  will  do  so  with 
a  greater  and  greater  majesty  of  command;  and  justice,  still 
the  reconciler,  will  carry  its  principles  with  it  into  that  highest 
range,  adjuring  force  as  a  solvent  of  disputes,  upholding  the  way 
of  reason,  and  asking  the  aid  of  great  lawyers  as  its  ministers. 


LORD  SHAW.  239 

So  we  come  to  realize  that  the  dispeiiBiiig  of  justice  is  no 
despot's  behest,  but  is  part  as  I  say  of  the  ministry  of  reason  in 
the  affairs  of  men.  Thus,  as  you  ascend^  the  view  widens,  and 
everyhere^  a/s  I  see  it,  the  range  of  law  is  seen  to  ascend.  But, 
ministers  of  reason,  bestir  yourselves.  For  tiie  other  side,  the 
brutality  of  force  has  but  the  other  day  been  vastly  reinforced. 

A  new  fear  it  as  the  heart  of  mankind  at  this  hour.  It  is 
connected  with  the  advance  of  science.  Never  since  the  world 
began  had  force,  brutality  and  anarchy  such  an  opportunity. 
War,  with  all  its  sacrifice,  has  not  been  too  dear  if  it  open  the 
eyes  of  mankind  to  the  appalling  gravity  of  continuing  in  the 
worship  of  force  and  of  further  defying  the  governance  of  reason. 
A  new  era  opens  to  mankind.  If  you  conceive  of  international 
law  as  binding  all  nations,  then  international  law,  I  speak  it 
with  sorrow  but  conviction,  international  law  is  in  ruins.  Force 
under  immoral  or  non-moral  control  can,  we  know,  undo,  and 
has  undone,  the  humanest  conventions  of  the  ages.  And  a  de- 
struction can  now  be  accomplished  in  the  course  of  minutes 
which  will  overthrow  the  achievements  of  mankind  built  up  in 
the  course  of  centuries.    The  earth  is  affrighted. 

Men,  unless  reason  and  the  arbitrament  of  justice  be  reasserted 
on  the  earth,  will  hide  beneath  the  ground  on  which  the  ruins  of 
human  happiness  have  been  overthrown.  Do  you  think  this 
picture  overdrawn  ?    Well,  listen  to  this : 

Let  me  quote  from  that  most  distinguished  soldier,  Major- 

General  Sir  Frederick  Maurice : 

Early  in  May,  1915,  the  Germans  made  their  second  gas  attack  at 
Ypres,  employing  a  far  ^eater  volume  of  gas  than  in  their  first  attack. 
I  remember  that  early  m  the  morning,  when  this  second  attack  took 
place,  I  was  riding  just  outside  Haasebrouck  when  my  horse  suddenly 
refused  to  go  a  yard  further,  and  soon  after  I  felt  my  own  eyes  smarting. 
When  I  got  back  to  my  office  I  received  a  telegram  with  the  news  of 
the  gas  attack,  and  realized  that  I  and  my  horse  had  felt  the  sas  21 
miles  from  the  place  where  it  had  been  discharged.  If  that  gas  had  been 
really  poisonous,  thousands  of  women  and  children  in  Haasebrouck 
that  day  might  have  been  killed.  A  fleet  of  aeroplanes  could  now  carry 
for  several  hundred  miles  as  much  gas  as  the  Germans  discharged  on  that 
occasion,  and  if  the  gas  were  really  poisonous,  and  the  breeze  carried  it 
for  a  distance  of  21  miles  from  the  place  where  it  was  dropped,  the 
destruction  of  the  civil  populaticm  would  indeed  be  wholesale. 

So  it  has  come  to  this.  The  conflict  as  old  as  history,  between 
right  and  wrong,  the  solutions  as  old  as  history,  between  material 
advancement   eventually   pursued   and   ideal   progress   legally 


\ 


240  THB  WIDENING  RANGE  OF  LAW. 

achieved^  yet  still  there  remains  acknowledged  remedies  as  cruel 
as  the  darkest  records  of  uncivilized  humanity^  of  the  adjust- 
ment of  human  affairs  by  force  instead  of  by  law.  All  these 
things  are  before  our  mind  now,  but  they  have  assumed  a  darker 
color.  The  glory  of  our  estate  is  shrouded  by  fear.  The  weak- 
nesses of  our  remedies  are  pitiful  to  see.  The  cry  of  aggrieved 
mankind  is  unavailing  forever  unless  a  new  method^  a  new  range 
of  law  be  reached  under  which  an  orderly  humanity  shaU  be 
free,  regardful  of  right  and  of  duty  and  submissive  to  justice 
after  reasoned  appeal. 

^'Pride^  pomp  and  circumstance  of  glorious  wax''  have  dis- 
appeared into  a  chemical  cauldron.  Chivalry  and  military  glory^ 
there  seems  no  room  for  them  under  the  sim.  They  have  fled  and 
in  their  place  is  left  only  the  diabolism  of  the  laboratory.  The 
powers  of  nature  will  undo  us  if  they  are  in  charge  of  the  passions 
of  men.  The  restraint  of  human  ambition  will  be  ineffectual 
unless  humanity  itself  and  its  greatest  nations  rise  in  revolt 
against  the  tyranny  of  those  methods  which^  regardless  of  law, 
have  triumphimtly  cuWinated  by  striking  h«mamty  down. 

In  this  task  of  widening  the  range  of  law  your  great  country 
has  produced  supremely  great  advocates.  I  sometimes  think 
that  the  federal  idea^  the  idea  which  the  genius  of  Hamilton 
and  Washington  combined  to  impress  upon  your  people^  under 
which  state  rights  could  be  guaranteed  and  the  union  kept 
secure,  is  on  the  eve  of  establishment  on  a  world  scale.  All 
nations  claim  their  state  rights,  all  nations  protest  against  a 
super-state,  just  as  Hamilton's  battles  had  to  be  fought  against 
a  similar  idea  of  the  union  being  regarded  as  a  super-state. 

Far-sighted,  able,  philosophically  minded  men,  have  discerned 
the  day  in  which  we  now  live,  and  the  light  of  humanity  in  which 
we  now  welter.  To  them  it  was  justice,  the  verdict  of  reason  and 
to  appeal  to  law,  which  are  the  salvation  of  mankind,  and  that 
appeal  was  grounded  upon  essential  and  fundamental  principles 
of  right,  distributed  with  equal  hand  against  wrong,  from  the 
humblest  to  the  highest  spheres  of  human  association  and  activ- 
ity. To  the  philosophers  like  Kant  and  Grotius  have  succeeded 
men  of  powerful  practical  insight,  such  as  your  own  presidents. 
Twelve  years  ago  President  Boosevelt  visited  Christiania.  He 
received  there  the  Nobel  prize,  and  delivered  his  lecture  on  in- 


LORD  SHAW.  S41 

temational  peace,  and  the  words  he  cited  are  the  noble  words  of 
which  every  American  and  every  humanitarian  should  be  proud. 
They  are  these : 

There  is  at  least  as  much  need  to  curb  the  cruel  greed  and  arrogance 
of  part  of  the  world  of  capital,  to  curb  the  cruel  greed  and  violence  of 
part  of  the  world  of  labor  as  to  check  a  cruel  and  unhealthy  militarism 
in  international  relationships.  I  would  like  you  to  think  over  the  wa^ 
that  I  have  put  that.  I  shall  ever  denounce  wrong-doing  because  it  is 
wrong,  whether,  done  by  the  rich  or  by  "the  poor. 

We  must  ever  bear  in  mind  that  the  great  end  in  view  is  righteous- 
ness, justice  as  between  man  and  man,  nation  and  nation,  the  chance  to 
lead  our  lives  on  a  somewhat  higher  level,  with  a  broader  spirit  of 
brotherly  good-will  one  for  another.  Peace  is  generally  good  in  itself, 
but  it  is  never  the  highest  good  unless  it  comes  as  ihe  handmaid  of 
righteousnesB;  and  it  becomes  a  very  evil  thing  if  it  serves  merely 
as  a  made  of  cowardice  and  sloth,  or  as  an  instrument  to  further  the 
ends  of  despotism  or  anarchy 

Now,  having  freely  admitted  the  limitations  to  our  work,  and  the 
qualifications  to  be  borne  in  mind,  I  feel  that  I  have  the  right  to  have 
my  words  taken  seriously  when  I  point  out  where,  jn  my  judgment,  great 
advances  can  be  made  m  the  cause  of  international  peace.  I  speak  as 
a  practical  man,  and  whatever  I  now  advocate  I  actually  tried  to  do 
when  I  was  for  the  time  being  the  head  of  a  great  nation  and  keenly 
jealous  of  its  honor  and  interest.  I  ask  other  nations  to  do  only  what  I 
should  be  glad  to  see  my  own  nation  do. 

Both  upon  its  ideal  and  its  practical  sides  this  policy  has 
been  followed  by  your  great  presidents  and  men  of  affairs. 
Humanity  in  its  noblest  sense  has  never  had  better  service  than 
from  your  most  thoughtful  of  men.  I  think  of  men  still  living. 
Not  of  your  two  great  presidents  alone^  Mr.  Wilson  and  Mr. 
Harding^  but  of  your  great  president  and  Chief  Justice  Taft — 
that  valiant  and  unwearied  soul,  and  of  another  whose  handwrit- 
ing I  have  gratefully  detected  in  the  humaner  details  of  those 
fine  pacts  for  the  pacific  and  for  the  limitation  of  armaments — 
I  call  him  the  Orotius  of  America/ and  his  name  is  Elihu  Boot. 

You  see  how  I  love  the  idea  of  justice  as  the  reconciler  of 
antitheses.  Even  political  antitheses  come  under  its  sway:  Be 
these  great  men  Sepnblicans  or  Democrats,  bless  and  honour 
them  all ;  they  meet  on  the  level  of  seeking  and  following  after 
justice.  And  it  is  this  which  makes  a  law  association,  serene 
in  the  exercise  of  its  function  and  proud  in  its  ministry,  no 
unfitting  place  for  thoughts  as  wide  as  bringing  the  world  under 
homage  to  peace. 

Humanity  lies  bleeding  and  stricken,  and  on  many  fair  spaces 
of  the  earth  alike  the  hand  of  war  and  the  hand  of  the  doctrinaire 
who  knows  not  justice  lie  heavy  like  a  curse.    We  think  of  the 


242  THE   WIDENING   RANGE  OF  LAW. 

tiiiion  of  the  English  speaking  race,  not  for  its  own  sake,  but, 
at  this  crisis  of  the  history  of  the  world,  for  the  serrice  that 
lies  to  its  hand — to  staunch  wounds,  to  redress  wrongs,  to 
remove  oppressions,  and,  better  than  all  these,  to  teach  men  a 
new  and  better  way  for  body  and  for  soul.  In  this  communion 
of  service  let  our  comradeship  be  sanctified ;  its  foundations  will 
be  €UTe ;  a  comradeship  of  righteousness. 

We  men  of  the  Anglo-American  race,  we  must  be  comrades  all, 
'comrades  forever.  And  I  kiiow  no  plainer  call  to  the  comrade- 
ship of  righteousness  than  a  common  loyalty  to  law,  and  to 
methods  of  its  sure  and  equal  appeal  to  reason.  Our  reward  is 
before  us.  The  inspired  prophetic  word  still  rin^s  like  a 
command — '^and  the  work  of  righteousness  shall  be  peace,  and 
the  effect  of  righteousness  quietness  and  assurance  forever.** 

My  appeal  to  you,  gentlemen  of  the  American  Bar,  is  that  the 
ancient  grudge  should  go  and  go  forever,  and  that  the  ancient 
comradeship  should  be  renewed  and  repledged,  renewed  and 
repledged  forever. 

By  your  forbearance,  may  I  add  this  concluding  word.  Do  not 
think,  do  not  dream,  that  we  on  the  other  side  are  not  aware  of 
and  not  sympathetic  with  you  in  those  constitutional  difficulties 
with  which  you  are  confronted.  We  know  the  fulminations  of 
Jefferson  against  alliances,  we  know  the  power  of  the  written 
constitution,  not  only  over  your  minds  but  most  deservedly  over 
your  affections  and  your  hearts.  It  will  be  highest  task  of  your 
statesmanship  to  evolve  out  of  the  citizenship  of  America  some- 
thing which  honoring  and  conserving  it,  will  yet  give  it  a  lofty 
place  in  the  citizenship  of  the  world.  These  things  cannot  be 
forced.  To  your  statesmen  and  your  great  lawyers  problems  of 
constitutional  complexity  will  arise,  misunderstandings  will  have 
to  be  faced.  It  will  be  on  a  world  scale  with  them  as  (^  an 
American  scale  it  was  with  Washington  and  with  Hamilton 
when,  to  their  eternal  honor,  they  unified  America  and  answered 
the  extreme  state  rights  claim  with  the  federal  idea.  But  I  have 
no  fears  for  the  result :  Friendship  claims  it,  the  world  awaits  it. 
Hard  and  many  the  difficulties  will  be.  But  is  it  not  so  in  life  ? 
How  often  amidst  the  misrepresentations,  the  trials,  the  buffet- 
ings  of  fortune,  or  the  desertion  of  friends,  have  we  not  recalled 
the  words  of  WasWngtpft  whjle  |ie  yrss  in  the  sapje  coil  oi  t?Q.uW« 


LORD  SHAW. 


243 


as  for  some  years  to  come  will  confront  your  public  men.    But 

we  must  go  forward;  we  must  follow  the  light:  from  this  the 

attractions  of  popularity  dare  not  deflect  us.    In  the  hazards  of 

private  life  and  professional  it  is  as  true  as  in  those  of  great 

public  issues,  we  remember  Washington's  pronouncement : 

If  to  please  the  people  we  offer  what  we  ourselveB  disapprove,  how 
can  we  afterwards  defend  our  work?  Let  us  raise  a  standanl  to  which 
the  wise  and  honest  can  repair.   The  event  is  in  the  hand  of  Go^. 


THE  DIVISION  OF  GOVERNMENTAL  POWERS  IN 

PRANCE  AND  AMERICA. 

M.  HENRY  AUBEPIN, 

OV  PABIB,  FBANC8. 

I  bring  to  the  American  Bar  Association  the  greeting  of  their 
brethrea  of  the  Bar  of  Paris. 

It  is  needless  for  me  to  state  that  we  appreciate  the  honor  you 
have  done  us  in  wishing  to  have  a  representative  designated  by 
French  lawyers  with  you  at  your  annual  meeting. 

As  for  myself;  I  fully  understand  the  importance  of  the  mission 
that  ha^  been  entrusted  to  me  and  it  will  be  the  honor  of  my 
career  to  have  been  the  messenger  of  my  confreres  on  the  other 
side  of  the  ocean  to  my  brethren  of  this  free  and  glorious  America, 
to  which  we  are  bound  by  so  many  memories  and  the  irresistible 
emotions  of  our  hearts. 

Both  you  and  we,  gentlemen,  love  liberty.  We  have  suffered 
and  have  fought  for  it,  and  it  was  only  necessary  that  it  should 
be  in  peril  to  find  ourselves  reunited  under  its  standards.  You 
and  we,  and  our  friends  the  English,  have  saved  liberty  once 
more,  and  now  that  it  is  again  safe  from  the  blows  directed  against 
it,  it  is  sweet  and  satisfying  for  a  citizen  of  free  France,  who  has 
devoted  his  life  to  the  study  and  defense  of  justice,  to  come  to  this 
land  of  liberty  and  celebrate  with  such  eminent  jurists  as  you 
the  worship  of  law  which  can  exist  only  in  the  pure  atmosphere 
of  liberty. 

I  should  like,  gentlemen,  to  discuss  with  you  today  a  subject 
which  in  France  is  occupying  our  thoughts:  It  is  iiie  relation 
that  exists  between  the  Executive,  the  Legislative  and  the  Judicial 
powers.  There  seems  to  be  developing  among  us  an  evolution 
which  has  already  been  completed  in  your  country.  It  may 
interest  you  to  learn  how  this  problem  presents  itself  in  my 
country,  and  I  know  you  will  not  think  me  indiscreet  if  I  ask  you 
to  let  us  profit  by  your  experience  and  permit  me  to  take  back  to 
Paris  the  enlightened  opinions  which  I  shall  be  able  to  obtain  here. 

(244) 


IC.  HHKBY  AUBHPIN.  245 

Under  the  influence  of  fhe  ideae  of  Montefiqnieu  and  of  his 
'^  Spirit  of  Laws/'  we  adopted  the  dogma  of  the  separation  of 
powers  in  order  to  maintain  an  eqnilibritun  between  the  three 
branches,  the  Ezeeutivey  Legislatiye  and  Judicial,  and  to  make  the 
separation  absolute  we  have  enclosed  each  in  its  own  sphere — ^al- 
most in  what  might  be  called  its  own  compartment.  But  in  human 
affairs  it  is  rare  that  separations  of  this  kind  are  definitive;  it  is 
rare  that  one  of  the  branches  does  not  give  off  other  branches 
which  extend  to  the  neighbor,  arresting  its  development  until  it 
is  atrophied.  But  it  is  not  always  the  same  branch  that  prevails 
or  succumbs.  A  branch  will  be  strong  and  flourishing  in  one  cli- 
mate and  weak  in  another.  It  would  seem  that  in  America  the 
Judicial  has  gained  the  supremacy  over  the  other  two  branches, 
while  in  France  it  is  the  Legislati,ve  that  has  become  supreme. 
Your  courts  determine  the  constitutionality  of  laws,  ours  only 
apply  them. 

Formerly  our  Parliament  had  a  right  of  remonstrance  against 
royal  ordinances,  and  it  is  not  necessary  for  me  to  recall  to  such 
a  learned  body  as  this,  how  useful,  and  at  times  necessary,  this 
right  was.  But  with  the  Bevolution  and  with  the  application  of 
the  principle  of  the  separation  of  powers  the  rdle  of  each  was 
strictly  defined — the  function  of  the  Judiciary  was  to  apply  the 
decisions  made  by  the  Legislature.    Montesquieu  wrote : 

The  closer  the  government  approaches  to  a  republic  the  more  the 

dedaions  of  the  courts  are  determiaed  by  fixed  rules In  a 

republican  form  of  government  it  is  of  the  essence  of  the  Constitution 
that  the  judges  follow  the  letter  of  the  law 

And  again : 

If  the  courts  are  not  to  be  controlled  by  fixed  rules,  their  decisions  must 
be  so,  to  the  extent  that  they  should  never  go  beyond  the  text  of  the 
law  itself.  If  th^  were  the  individual  opinions  of  the  judges,  we  ^ould 
be  living  in  a  world  where  we  should  not  know  what  ^ligations  we 
were  contracting. 

The  Constituent  Assembly  went  further  than  merely  to  absorb 
Montesquieu^s  ideas;  it  appropriated  them  and  carried  them  out 
to  their  most  extreme  consequences.  By  the  fundamental  decree 
of  August  16-24, 1790,  which  confirmed  the  separation  of  powers, 
it  was  the  Assembly  which  enacted  the  laws  and  interpreted  them. 
A  little  later  there  was  created  another  body,  the  Trtbunal  de 


246        GOVEBNMENTAL   P0WBR8  IN    FBANCB  AND  AMBRIOA. 

CiMsation,  whode  duty  it  was  to  supervise  most  rigorously  the 
strict  application  of  the  law  by  the  bodies  charged  with  that  duty. 
The  mission  of  the  Tribunal  de  Cassation  was  to  anniQ  every  judg- 
ment which  contravened  in  any  way  the  text  of  the  law.  The 
whole  system  has  been  summarized  by  a  learned  author  as  follows : 

The  courts  must  obey  the  law,  and  the  law  should  suffice  for  them 
to  do  justice;  if,  for  example,  the  judges  openly  disre^rd  it,  the  Tri^ 
hunal  de  Cassation  is  there  to  annul  their  decision.  If,  m  spite  of  rever- 
sal, the  lower  courts  continue  to  resist,  so  that  a  second  reversal  is 
required,  then  a  presumption  arises  that  the  law  is  obscure  or  insufficient 
on  the  point  at  issued  The  Tribunal  de  Cassation  ^i^uld  then  demand 
an  official  and  obligatory  interpretation  from  the  Legislature,  which  is 
the  only  body  competent  to  settle  judicial  problems. 

Robespierre  said : 

The  expression  "  Jurisprudence  des  Tribunaux,"  in  the  sense  in  which 
it  was  used  under  the  old  r^ime  has  no  further  significance.  It  should 
be  erased  from  our  language.  In  a  state  which  has  a  Constitution  and 
a  L^islature,  "la  jurisprudence  des  Tribunaux''  is  nothing  but  the 
law  itself. 

The  Convention^  which  succeeded  the  Constituent  Assembly, 
went  so  far  as  to  reverse  the  judgments  of  the  Tribunal  de  Cassa- 
tion. The  absolute  supremacy  of  the  legislative  power  was  thus 
politically  and  philosophically  confirmed. 

The  authors  of  the  Civil  Code  did  not  believe^  perhaps^  as 
strongly  as  their  Revolutionary  predecessors  in  the  absolute  virtue 
of  the  text  of  a  law;  they  would,  however,  have  been  astonished 
if  they  had  heard  the  statement  made  a  century  later  by  the  first 
Magistrate  of  France,  le  Premier  President  of  the  Court  of  Cassa- 
tion, Mr.  Ballot  Beaupr6,  on  the  occasion  of  the  celebration  of  the 
Centenary  of  the  Civil  Code. 

When  the  text  is  clear  and  precise  in  form  and  does  not  allow  of  any 
doubt,  the  judge  is  bound  to  conform  and  obey ;  if  he  does  not,  he  fails 
in  an  elementary  duty,  and  such  abuses,  should  they  become  general, 
would  produce  veritable  anarchy.  But  when  the  text  presents  some 
ambiguity,  when  doubts  arise  as  to  its  meaning  and  extent,  when,  taken 
in  connection  with  another  text  it  can  be  to  an  extent  contradicted  or 
limited,  or,  on  the  other  hand,  extended,  I  am  of  opinion  tliat  in  such 
a  case  the  judge  has  the  widest  powers  of  interpretation.  He  should 
not  obstinately  try  to  discover  the  thought  of  the  authors  of  the  Code  a 
hundred  years  ago  in  drafting  such  and  such  an  article;  he  should  ask 
himself  what  their  thoughts  would  have  been  had  they  been  drafting 
the  same  article  today;  he  should  say  to  himself  that  in  view  of  all  the 
changes  which  have  occurred  during  the  last  century  in  the  ideas,  the 
habits,  the  institutions,  the  economio  and  social  state  of  France,  justice 
and  reason  require  that  the  text  be  adapted  liberally  and  humanely  to 
the  realities  and  the  needs  of  modem  Life. 


M.   HBNTRY  AUBBPIN.  247 

To  adapt  the  text  of  the  law  to  the  exigencies  of  life — that  is 
something  tliat  would  make  the  legislators  of  the  beginning  of 
the  last  century  rage  in  their  graves ! 

And  yet  President  Ballot  Beaupr^  cites  many  cases  where  the 
judge,  jSuding  himself  faced  by  conditions  which  the  authors  of 
the  code  had  not  provided  for,  either  because  they  did  not  exist 
or  because  they  were  not  foreseen,  has  made  his  decision  by  apply- 
ing in  a  broad  and  remarkably  liberal  spitit  the  provisions  of 
the  Code  Napoleon. 

As  a  matter  of  fact,  the  judge  is  frequently  forced  to  supple- 
ment the  law.  Portalis,  himself,  one  of  the  authors  of  the  Civil 
Code,  said:  "It  is  impossible  for  a  legislator . to  provide  for 
everything.  A  code,  no  matter  how  complete  it  may  seem,  is  no 
sooner  drafted  than  a  thousand  unexpected  questions  present 
themselves  to  the  magistrate;  but  in  none  of  these  cases  do  we 
see  the  judge  rectify  the  law.** 

Now  a  new  tendency  is  leading  the  judge  to  correct  the  work 
of  the  legislator.  It  is  especially  in  our  war  legislation  that  this 
tendency  is  manifested.  As  a  learned  author  remarks,  our 
Supreme  Court  has  shown  in  these  circumstances  a  distinct 
tendency  to  treat  the  legislative  texts  with  greater  liberty  than  in 
the  past.  You,  yourselves,  I  have  been  informed,  have  not 
escaped  more  than  we,  what  we  call  in  France  the  Housing  Crisis. 
It  exists  everywhere  with  us,  in  the  smallest  villages  as  well  as 
the  most  populous  centers.  Last  year  one  of  my  friends,  a  lawyer, 
had  a  striking  example  of  this.  When  we  go  to  plead  before  a 
provincial  court,  it  is  customary  to  call  on  the  president  of  the 
Tribunal  at  his  own  home.  My  friend,  having  inquired  for  the 
residence  of  the  president,  was  informed  that  he  would  finr5  the 
magistrate  in  the  Palais  de  Justice.  My  friend  went  there  and 
found  the  judge  in  the  room  reserved  for  the  deliberations  of  the 
judges.  But  what  was  his  stupefaction  when  he  saw  in  this  room 
a  bed!  "Ah,  yes,**  said  the  president,  observing  his  astonish- 
ment, "as  there  is  no  unoccupied  apartment  in  town,  this  is 
where  I  live.** 

This  abnormal  state  of  affairs  is  the  cause,  unless  it  be  the 
result,  of  the  whole  system  of  legislation. 

Charged  with  the  duty  of  applying  the  law  in  regard  to  rents, 
and,  above  all,,  with  the  necessity  of  enforcing  the  legal  prolonga- 


248       GOVERNMENTAL  POWEBS   IN   FRANOB  AND  AKBBICA. 

tion  of  leases^  the  courts  give  an  interpretation  to  the  law  which 
appears  to  the  legislators  so  contrary  to  the  thought  which  in- 
spired it  that  three  times  they  have  passed  statutes  in  order  to 
induce  the  judges  to  serve  their  will. 

But^  gentlemen^  we  have  seen  even  more !  We  have  seen  the 
judge  no  longer  obliged  to  yield  to  the  repeated  orders  of  the 
legislative  power;  we  have  seen  the  legislative  power  bend  to  the 
decisions  of  the  judges. 

War  legislation  furnishes  us  with  still  another  example.  Be- 
side the  heroes^  all  wars  have  produced  speculators  who  have  taken 
advantage  of  the  enormous  needs  of  the  moment  to  raise  the 
prices  of  necessities  in  a  scandalous  manner  and  make  rapid  for- 
tunes. The  last  war^  with  us^  produced,  beside  a  harvest  of  brave 
and  pure  young  men,  an  abominable  crop  of  tares,  the  most 
shameful  of  human  beings,  the  profiteers. 

It  was  necessary  for  the  legislature  to  intervene  and  take  steps 
to  circumvent  the  shameful  movement.  Therefore,  in  1916,  a 
law  was  passed  in  regard  to  illicit  speculation  extending  the  pro- 
visions of  the  Penal  Code  to  those  who  cornered  the  necessities  of 
life  and  to  combinations  of  speculators.  This  statute  inter- 
fered with  the  free  play  of  the  law  of  demand  and  supply, 
and  this  in  turn  would  have  upset  all  markets.  The  courts,  it 
must  be  admitted,  interpreted  the  law  in  such  a  manner  as  to 
avoid  doing  this:  Instead  of  attacking  the  artificial  rise  of 
prices,  they  attacked  the  making  of  an  excessive  profit,  and  in 
order  to  define  an  excessive  profit,  they  arrogated  to  themselves 
the  right  to  fix  the  maximum  profit.  We  lawyers  protested  with 
the  utmost  energy  and  at  every  possible  opportunity  against  an 
application  of  the  law  which  was  contrary  to  the  law  itself,  and 
the  question  was  brought  before  Parliament.  The  author  of  the 
law  himself  protested,  declaring  that  the  courts  were  not  applying 
the  law,  but  were  interpreting  it  in  a  manner  entirely  contrary  to 
the  ideas  of  its  f  ramers.  The  courts  insisted  upon  their  interpre- 
tation and  this  is  what  happened:  Parliament  adhered  to  the 
doctrine  of  the  courts.  Not  only  did  it  no  longer  protest  against 
the  decisions,  it  agreed  so  completely  with  them  as  to  announce 
its  intention  to  extend  the  law  beyond  the  period  when  it  was  to 


M.   HBNBY  AUBBPIK.  M9 

have  terminated.    Tbere^  gentlemen^  is  that  not  a  fine  example 
of  the  progress  of  the  judicial  power  P 

This  is  not  the  only  example  I  could  cite.  A  whole  new  school 
is  coming  into  being  which  gi^es  the  judiciary  power  over  the 
legislature.  In  support  of  their  position  they  refer  to  you^  gentle- 
men^ and  to  your  country. 

Laws  have  been  passed  at  times  which  were  manifestly  con- 
trary to  our  fundamental  law  and  even  to  the  charter  of  our 
country — the  Declaration  of  the  Bights  of  Man  and  of  the  Citi- 
zen. Many  of  our  jurisconsults  would  wish  to  do  away  with  the 
possibility  of  such  attacks  and  seek  to  give  the  judges  the  right 
to  judge  the  law,  and  quite  naturally  hope  to  introduce  into  our 
judicial  system  the  right  of  the  courts  to  pass  on  the  constitu- 
tionality of  laws. 

Are  they  wrong,  or  are  they  right?  You,  gentlemen,  are  in 
the  best  position  to  answer  this  question. 

What  is  the  best  way  to  defend  the  Bight  ?  The  defense  of  the 
Right,  as  I  have  said  before,  is  equally  dear  to  us  both.  You  have, 
indeed,  proved  it.  Eight  years  ago  the  Bight  was  outrageously 
violated.  Treaties  were  violated,  international  law  was  violated, 
and  the  laws  of  war  were  violated.  And  while  we  dung  to  the 
soil  of  our  country  with  the  endurance  and  tenacity  which  are 
the  dominant  qualities  of  the  children  of  France,  the  winds  of 
ocean  carried  to  you  the  echo  of  all  the  outrages  which  the  Bight 
was  suffering.  * 

Then,  in  defense  of  the  Bight,  you  arose ;  and  you,  who  from 
the  first  hours  of  our  trial  had  given  us  the  help  of  your  generous 
charity  brought  us  the  support  of  your  armed  forces.  ^*  Might 
is  greater  than  Bight,''  said  Bismarck.  You,  my  friends,  put 
Might  in  the  camp  of  Bight  and  that  brought  the  victory. 

A  Frenchman  coming  to  America  would  be  an  ingrate  if  he  did 
not  call  up  the  memories  of  all  you  did  for  France.  Here  among 
lawyers  he  may  well  call  up  those  memories,  for  what  you  did  for 
France  you  did  for  the  Bight. 


POSSIBLE  AND  NEEDED  BEPORMS  IN  THE 

ADMINISTRATION  OP  JUSTICE  IN 

THE  FEDERAL  COURTS. 

BT 

WILLIAM  HOWARD  TAFT, 

CHIEF  JUSTIGB  OP  THE  UNITED  STATES. 

I  hope  you  feel  in  a  proper  state  of  mind  this  mornings  in  view 
of  the  roof  under  which  you  are  gathered.  I  don't  know  any 
reason  why  the  distinction  was  made  by  which  Lord  Shaw  of  Dun- 
fermline should  speak  in  a  place  where  athletic  contests  had  there- 
tofore been  had>  and  I  should  be  assigned  to  this  sacred  structure. 
It  was  doubtless  because  they  knew  that  Lord  Shaw  could  be 
trusted  anywhere.  I  am  sorry  that  we  have  not  had  the  benefit 
of  this  fine  church  auditorium  for  all  the  sessions.  I  feel  in 
speaking  here  as  if  I  were  enjoying  an  undue  privilege, — as  if  it 
were  denying  to  others  the  equal  protection  of  the  law,  not  to 
give  them  the  same  opportunity.  However,  I  shall  need  your 
prayers  and  all  your  self-restraint  to  keep  your  attention  to 
what  I  have  to  present  to  you  this  morning,  because  it  is  going 
to  be  dry  to  the  point  of  satisfying  the  Anti-Saloon  League. 

For  many  years,  the  disposition  of  business  in  the  federal  courts 
of  first  instance  was  prompt  and  satisfactory.  This  was  because 
the  business  there  was  limited,  and  the  force  of  judges  sufficient 
to  dispose  of  it ;  but  of  recent  years  the  business  has  grown  be- 
cause of  the  tendency  of  Congress  toward  wider  legislative 
regulation  of  matters  plainly  within  the  federal  power  which  it 
had  not  been  thought  wise  theretofore,  to  subject  to  federal  con- 
trol. More  than  that,  the  general  business  of  the  coxmtry,  and 
the  consequent  litigation  growing  out  of  it  has  increased,  so  that 
even  in  fields  always  occupied  by  the  federal  courts,  the  judicial 
force  has  proved  inadequate.  In  this  situation,  the  war  came  on, 
statutes  were  multiplied,  aad  gave  a  special  stimulus  to  federal 
business.  Since  the  war,  there  has  been  a  great  increase  of 
crimes  of  all  kinds  throughout  the  country.  This  within  the 
federal  jurisdiction  has  included  depredations  on  interstate  com- 
merce, and  schemes  to  defraud  in  which  are  used  facilities  fur- 
nished by  the  general  government. 

(260) 


WILtJAM  MOWAtO)  *t^ATT.  251 

Then  under  the  inspiration  of  the  war^  traffic  in  intozicatLog 
liquors  was  forbidden^  and  under  the  same  inspiration  the  18th 
Amendment  was  passed  and  the  Volstead  Law  was  put  upon  the 
statute  book.  Prosecutions  under  this  law  alone  have  added  to 
the  business  in  the  federal  courts  certainly  10  per  cent;  while 
cases  growing  out  of  the  income  and  other  war  taxation^  out  of 
war  contracts  and  claims  against  the  government^  have  made 
discouraging  arrears  in  many  congested  centers.  The  criminal 
business  has  usually  been  first  attacked^  and  the  effort  to  dispose 
of  it  has  in  soi»e  jurisdictions  nearly  stopped  the  work  on  the 
civil  side. 

The  Attorney-General,  properly  as  it  seems  to  me,  conceived 
that  the  first  step  to  take  was  the  creation  of  new  judgeships. 
A  bill  was  introduced  in  both  Houses  for  the  addition  of  18 
district  judges  to  the  judicial  force,  two  for  each  circuit,  who 
were  not  to  be  assigned  to  any  district,  but  were  to  be  subject  to 
call  to  any  district  in  the  circuit  in  which  they  were  appointed, 
to  assist  the  existing  district  judges.  In  addition,  these  judges 
and  the  existing  district  judges  were  made  subject  to  assignment 
from  one  circuit  to  another  where  the  business  required  it.  The 
suggestion  of  a  flying  squadron  of  judges,  however,  did  not  meet 
with  approval  in  the  House  of  Representatives,  and  the  Judiciary 
Committee  of  that  body  preferred  to  add  local  district  judges 
for  the  districts  where  the  congestion  was  most  apparent. 

Accordingly  a  bill  was  put  through  which  made  new  judges  in 
21  districts.  The  bill  when  it  reached  the  Senate  was  modified 
somewhat.  It  went  to  conference,  and  a  bill  which  provides  for 
24  new  district  judges  and  one  circuit  judge  in  the  Fourth  Cir- 
cuit has  been  reported  to  both  Houses.  It  is  opposed,  and  will 
doubtless  lead  to  discussion;  but  in  view  of  the  previous  votes  in 
the  two  Houses,  it  seems  likely  that  the  bill  will  pass  before  the 
close  of  this  Congress. 

The  bill  contains  a  very  important  provision,  which  it  seems  to 
me  will  make  for  expedition  and  efficiency.  While  the  districts 
which  receive  new  judges  are  those  in  which  additions  to  the 
judicial  force  are  most  needed,  there  are  arrears  in  other  dis- 
tricts and  the  delays  and  defeats  of  justice  are  not  confined  to 
the  normal  jurisdiction  of  the  24  new  judges.  The  new  bill 
atithorizes  a  judicial  council  of  lOgudges,  consisting  of  the  Chief 


252  BSFORMS  IN  THB  ABJCINISTBATION   OF  JUSTIOB. 

ft 

Justice  and  the  senior  associate  judge  of  each  circuit,  which  is  to 
meet  in  Washington  the  last  Monday  in  September,  to  consider 
reports  from  each  district  judge  with  a  description  of  the  char- 
acter of  the  arrears,  and  a  recommendatipn  as  to  the  extra  judicial 
force  needed  in  his  district.  The  conference  thus  called  is  to 
consider  at  large  plans  for  the  ensuing  year  by  which  the  district 
judges  available  for  assignment  may  be  best  used,  l^he  senior 
circuit  judge  of  each  circuit  is  given  authority  to  assign  any 
district  judge  of  one  district  to  any  other  in  his  circuit,  while 
the  Chief  Justice  is  given  authority  to  assign  any  district  judge 
in  one  circuit  to  a  district  in  any  other  circuit,  upon  request  of 
the  senior  circuit  judge  of  the  circuit  to  which  the  district  judge 
is  to  be  assigned,  and  the  consent  of  the  senior  circuit  judge 
of  the  circuit  from  which  he  is  to  be  taken. 

These  provisions  allow  team  work.  They  throw  upon  the  coun- 
cil of  judges  the  responsibility  of  making  the  judicial  force  do  a 
work  which  is  distributed  unevenly  throughout  the  entire  country. 
It  etids  the  absurd  condition,  which  has  heretofore  prevailed, 
under  which  each  district  judge  has  had  to  paddle  his  own  canoe 
and  has  done  as  much  business  as  he  thought  proper.  Thus  one 
judge  has  broken  himself  down  in  attempting  to  get  through  an 
impossible  docket,  and  another  has  let  the  arrears  grow,  in  a  calm 
philosophical  contemplation  of  them  ba  an  inevitable  necessity 
that  need  not  cause  him  to  lie  awai^e  nights.  It  may  take  some 
time  to  get  this  new  machinery  into  working  operation,  but  I  feel 
confident  that  the  change  will  vindicate  itself.  The  application  of 
the  same  executive  principle  to  the  disposition  of  legal  business 
in  the  municipal  courts  of  certain  cities,  and  in  the  courts  of  some 
states,  has  worked  well.  Although  the  whole  United  States  is  a 
more  difficult  field  in  which  to  apply  it,  there  would  seem  to  be  no 
reason  why  its  more  ambitious  application  should  not  prove 
useful. 

A  good  many  objections,  I  may  state  informally,  have  been 
made  to  this  feature  of  the  bill.  It  is  thought  that  it  gives 
too  much  power  to  the  council  of  judges,  and  especially  to  the 
Chief  Justice.  Gentlemen  have  suggested  that  I  would  send  dry 
judges  to  wet  territory  and  wet  judges  to  dry  territory,  oblivious 
of  the  fact  that  the  Chief  Justice  has  not  the  means  of  assigning 
them  to  any  particular  work  in  any  district  to  which  he  may  assign 


WILMAM  HOWARD  TAPT.  253 

tbem^  and  that  assigmnent  to  cases  must  necessarily  be  made  by 
the  local  district  judge  who  is  in  charge^  and  oblivious  of  the  fact 
also  that  it  is  only  by  the  consent  of  the  two  circuit  judges  that 
he  can  act.  It  nevertheless  did  serve  to  call  out  in  the  discussion 
references  to  JeftrejSy  and  other  notorious  judges  in  the  history 
of  our  profession,  which  did  not  seem  to  be  altogether  compli- 
mentary to  those  to  whom  the  references  were  applied. 

Second^  I  come  to  the  appellate  business  in  the  federal  system. 
In  the  old  days  when  business  was  light  in  all  the  federal 
courts,  the  appeals  and  writs  of  error  that  were  taken  to  the 
Supreme  Court  were  not  sufficiently  numerous  to  occupy  the  full 
time  of  the  Supreme  Court  and  the  justices  were  able  to  do  a 
large  amount  of  circuit  work.  Indeed,  under  the  statute,  until 
recent  years,  a  circuit  justice  was  required  to  visit  each  district 
in  the  circuit  to  which  he  was  assigned,  once  in  two  years.  As 
the  appellate  business  grew,  however,  this  rule  became  more 
honored  in  the  breach  tiian  in  the  observance,  and  it  has  now 
been  properly  repealed.  Its  existence,  however,  showed  that  there 
was  a  time  when  its  obligation  was  not  unreasonable. 

It  has  had  one  effect^  good  or  otherwise,  as  you  may  be  affected 
by  it,  that  it  justified  the  adjournment  of  the  Supreme  Court 
early  in  the  spring,  in  order  that  the  Justices  might  do  their 
circuit  work.  And  if  they  didn't  have  any  circuit  work,  the 
logical  result  was  that  it  en^^rged  their  summer  vacation.  Now 
we  have  been  gradually  creeping  up  on  that  vacation,  so  that 
ultimately  it  may  come  within  reasonable  limits. 

In  1891  a  new  intermediate  court  was  created — ^ihe  Circuit 
Court  of  Appeals,  one  to  each  circuit,  and  the  circuit  judges  were 
ultimately  increased  so  as  to  give  three  or  more  circuit  judges 
for  each  court  of  appeals,  except  that  of  the  fourth  circuit  where 
there  are  only  two.  The  new  bill  proposes  to  give  that  circuit  an 
additional  judge.  In  the  Act  of  1891  appeals  were  allowed  from 
the  courts  of  first  instance  to  the  circuit  court  of  appeals,  and, 
speaking  generally,  the  judgments  of  the  new  court  in  cases  de- 
pending on  diverse  citizenship,  patent  cases,  admiralty  cases  and 
criminal  cases,  were  made  final.  This  radical  change  became  neces- 
sary because  of  the  arrears  in  the  Supreme  Court,  which  put 
the  court  three  years  behind  the  disposition  of  its  cases.  The 
new  syjstem  worked  a  great  reform,  and  the  court  was  able 


254  REFORMS   IN   THE  ADMINISTRATION   OF   JUSTICE. 

to  catch  up  and  keep  up  with  its  business  until  within  recent 
years.  Now  there  is  an  interval  of  15  months  between  the  filing 
of  a  case  in  the  court  and  its  hearing.  To  be  exact,  I  had  the 
clerk  give  me  the  time  taken  between  the  filing  of  the  transcript 
and  the  hearing  of  the  last  ten  cases  on  the  regular  docket  heard 
in  the  Supreme  Court,  and  the  average  interval  was  14  months 
and  16  days.  This  is  due  not  alone  to  the  number  of  cases  filed, 
but  also  to  the  fact  that  with  the  increasing  number  of  cases  in 
which  emergent  public  interest  demands  that  a  speedy  disposition 
be  had,  many  cases  are  taken  out  of  their  order  and  are  advanced. 
Much  of  the  time  of  the  court  is  consumed  in  the  hearing  of  such 
cases  and  the  regular  docket  is  delayed. 

The  members  of  the  Supreme  Court  have  become  so  anxious 
to  avoid  another  congestion  like  that  of  the  decade  before  1891, 
that  they  have  deemed  it  proper  themselves  to  prepare  a  new  bill 
amending  the  jurisdiction  of  the  Supreme  Court  and  to  urge  its 
passage.  A  committee  was  appointed  some  two  years  ago,  and 
this  year  they  gave  great  attention  to  it.  The  committee  was 
composed  of  Mr.  Justice  Day,  Mr.  Justice  McKeynolds,  and 
Mr.  Justice  Vandeventer,  while  the  Chief  Justice  was  an  ex- 
oflScio  member.  The  bill  is  now  pending  in  both  houses  of 
Congress*.  The  Act  of  1891  introduced  into  the  appellate-  sys- 
tem a  discretionary  jurisdiction  of  the  Supreme  Court  over 
certain  classes  of  appeals.  It  proceeded  on  the  theory  that  so 
far  as  the  litigants  were  concerned,  their  rights  were  sufficiently 
protected  by  having  one  trial  in  a  court  of  first  instance,  and  one 
appeal  to  a  court  of  appeal,  and  that  an  appeal  to  the  Supreme 
Court  of  the  United  States  should  only  be  allowed  in  cases  whose 
consideration  would  be  in  the  public  interest.  Accordingly  under 
existing  law,  appeals  in  diverse  citizenship  cases,  in  patent  cases, 
in  bankruptcy  cases,  in  admiralty  cases,  and  in  criminal  cases, 
can  now  reach  the  Supreme  Court  for  review  only  when  that 
court  shall,  after  consideration  of  the  briefs  and  record,  deem 
it  in  the  public  interest  to  grant  the  writ  of  certiorari.  By 
the  Act  of  1916,  this  discretionary  power  of  the  court  was  ex- 
tended and  its  obligatory  jurisdiction  reduced,  as  to  review  of  the 
state  court  judgments,  so  that  now  the  only  questions  which 
can  come  by  writ  of  error  from  a  state  court  to  the  Supreme 
Court  as  a  matter  of  right,  are  those  in  which  the  validity  of 


WILLIAM  HOWABD  TAFT.  255 

a  state  statate  or  authority  or  of  a  federal  statute  or  authority 
under  the  Constitution  has  been  the  subject  of  consideration 
by  the  state  courts  and  has  been  sustained  in  the  former^  or 
denied  in  the  latter  case.  All  constitutional  questions  arising 
in  the  federal  courts,  in  the  district  courts  or  the  Circuit  Court 
of  Appeals^  subject  to  review  at  all,  may  under  existing  law  be 
brought  to  the  Supreme  Court  as  of  right.  Thus  there  is  a 
distinction  between  writs  of  review  from  the  state  courts  and 
review  of  the  subordinate  ffederal  courts. 

The  new  bill  increases  the  discretionary  appellate  jurisdiction 
now  vested  in  the  Supreme  Court  so  that  no  ^e  of  any  kind  can 
be  taken  from  the  Circuit  Court  of  Appeals  to  the  Supreme 
Court  of  the  United  States  without  application  for  a  certiorari. 
Obligatory  appeals  from  all  other  courts  subordinate  to  the 
Supreme  Court  of  the  United  States,  except  from  the  federal 
district  courts  in  a  limited  class  of  cases  and  from  the  state  courts, 
are  also  abolished  and  only  review  by  certiorari  is  provided.  This 
includes  the  Court  of  Appeals  of  the  District  of  Columbia  and  the 
Court  of  Claims,  as  well  as  the  territorial  courts.  Direct  appeals 
from  the  district  courts  to  the  Supreme  Court  in  jurisdictional 
and  constitutional  questions  are  abolished  and  such  questions 
are  to  reach  the  Suprteie  Court  only  through  the  Circuit  Court 
of  Appeals.  These  changes  it  is  thought  will  give  the  Supreme 
Couri;  such  control  over  the  business  ^as  that  it  can  catch  up 
with  its  docket. 

The  objection  urged  to  the  bill  is  that  it  gives  the  Supreme 
Court  too  wide  discretionary  power  in  respect  to  granting  appeals, 
and  that  a  thorough  examination  of  the  cases  on  the  applications 
for  certiorari  is  impossible. 

The  bill  has  been  recommended  by  the  members  of  the  court 
only  after  a  very  full  consideration  of  the  subject.  They  are 
convinced  that  it  is  the  best  and  safest  method  of  avoiding  arrears 
on  their  docket.  It  does  not  need  an  extended  and  close  argument 
upon  the  merits  of  a  question  to  enable  the  court  to  decide  whether 
it  is  important  enough  in  a  public  sense  to  justify  its  considera- 
tion. It  is  not  necessary  upon  such  an  application  for  the  court 
to  decide  the  issues  which  were  considered  below.  That  is  noi 
what  the  certiorari  should  turn  on.  The  court  can  quickly  ac- 
quire knowledge  of  the  nature  of  the  questions  in  the  case  from 

9 


256  BSFOEHS  IN  THB  ADICINISTRATION   OF  JUSTIOB. 

the  briefs  filed.  To  allow  an  oral  argument  on  such  applications 
would  be  largely  to  defeat  the  object  of  the  new  bill.  ETery  brief 
presented  is  carefully  examined  by  each  member  of  the  court  and 
every  case  is  discussed  and  voted  on.  I  want  to  emphasize 
that,  because  I  am  a  witness. 

The  class  of  cases  most  pressed  upon  the  court  for  the  writ  of 
certiorari  is  not  that  of  the  cases  that  involve  serious  constitu- 
tional questions  or  questions  of  public  importance.  The  motive 
of  the  litigants  generally  is  merely  to  get  another  chance  to  have 
questions  of  importance  to  them,  but  not  of  importance  to  the 
public,  passed  upon  by  another  court. 

The  present  discretionary  power  of  the  Supreme  Court  in  allow- 
ing appeals  in  certain  cases  coming  from  state  supreme  courts  and 
involving  federal  constitutional  questions  is  very  little  enlarged 
by  the  new  bill.  The  change  in  the\iew  bill  on  this  point  was 
made  rather  to  clarify  the  meaning  of  the  existing  law  than  to 
enlarge  the  court's  discretion,  and  if  objected  to  may  well  be 
stricken  out.  The  general  power  of  certiorari  in  such  constitu- 
tional questions  was  conferred  in  the  Act  of  1916,  and  has  been 
exercised  ever  since.  It  was  granted  because  Congress  found  that 
counsel  were  often  astute  in  framing  pleadings  in  state  courts  to 
create  an  unsubstantial  issue  of  federal  constitutional  law  and  so 
obtain  an  unwarranted  writ  of  error  to  the  Supreme  Court.  It 
was,  therefore,  thought  wise  not  to  permit  a  writ  of  error  as  of 
right  in  any  cases  except  in  those  in  which  the  plaintiff  in  error 
could  show  that  a  state  court  had  held  a  state  statute  valid  which 
was  said  to  be  in  violation  of  the  federal  Constitution,  or  a  • 
federal  statute  invalid  for  the  same  reason ;  and  to  require  in  all 
other  cases  of  alleged  violation  of  federal  constitutional  limita- 
tion that  the  Supreme  Court  should  be  given  a  preliminary  oppor- 
tunity on  summary  hearing  to  say  whether  the  claim  made  pre- 
sented a  real  question  of  doubtful  constitutional  law^  or  was,  on 
its  face,  unworthy  of  serious  consideration  in  view  of  settled 
principles.  It  was  thought  that  a  court  very  familiar  with  such 
questions  by  constant  application  of  them,  could  in  a  summary 
hearing  separate  wheat  from  the  chaff  and  promptiy  end  litiga- 
tion, the  continuance  of  which  must  do  great  injustice  to  the  suc- 
cessful party  below,  and,  what  is  more  important,  clog  the  docket 
and  delay  the  hearing  of  meritorious  causes. 


WILLIAM  HOWARD  TAJT.  25? 

As  already  said,  the  new.  bill  extends  the  certiorwri  jurisdiction 
of  the  Supreme  Court  to  constitutional  questions  which  are  de- 
cided by  the  federal  circuit  courts  of  appeal.  There  really  isn't 
any  reason  why  a  distinction  should  be  made  between  the  state 
supreme  courts  in  this  regard  and  the  Circuit  Court  of  Appeals. 
If  in  two  federal  courts  whose  reason  for  being  is  to  protect  the 
rights  of  individuals  against  local  prejudice  in  state  courts,  or 
against  infraction  of  their  federal  constitutional  rights,  a  com- 
plainant is  defeated,  surely  it  is  not  conferring  undue  power  upon 
the  Supreme  Court,  whose  members  are  engaged  daily  and  for 
years  in  the  consideration  of  such  questions  and  their  final  adjudi- 
cation, to  provide  a  preliminary  investigation  into  their  serious- 
ness and  importance  before  burdening  that  court  and  its  docket 
with  a  lengthy  and  formal  hearing.  The  public  and  other  liti- 
gants have  rights  in  respect  of  frivolous  and  unnecessary  consump- 
tion of  the  time  of  the  Supreme  Court  which  the  use  of  the  writ  of. 
certiorari  seems  to  be  the  only  practical  method  of  preserving. 
Too  many  appeals  impose  an  unfair  burden  on  the  poor  liti- 
gant. Gentlemen,  speed  and  despatch  in  business  are  essential  to 
do  justice. 

.  Various  methods  have  been  adopted  to  limit  appeals  to  courts 
of  last  resort.  One  is  by  imposing  heavy  costs.  But  that  puts 
the  privilege  within  the  reach  of  the  longer  purse.  Again 
classification  by  subject  matter  has  been  attempted,  but  this 
has  not  prevented  clogging  the  docket  with  cases  presenting  no 
question  of  general  interest  or  diflBculty.  In  Calif  ornia,  in  Ohio, 
in  Illinois  and  in  other  states,  the  legislature  has  extended  to  the 
state  supreme  court  a  discretion  after  preliminary  and  summary 
examination,  to  grant  or  deny  appeals. 

The  failure  of  the  Supreme  Court  to  lay  down  definite  rules 
for  determining  the  cases  in  which  certioraris  should  be  granted 
has  called  for  adverse  conmient.  This  is  unjust.  Certain  general 
rules  have  been  laid  down.  The  writ  is  used  to  secure  uniformity 
of  decision  in  subordinate  courts  of  appeal  and  to  decide  questions 
of  general  public  importance  which  are  not  well  settled.  It  is  said 
that  this  is  vague.  But  the  very  postulate  upon  which  the  discre- 
tion is  granted  is  that  definite  rules  for  determining  the  appeal- 
able cases  have  not  proved  satisfactory,  and  that  it  is  better  to  let 


268  RBFOEMS   IN   THE  ADMINISTRATION.  OF  JUSTICB. 

the  Supreme  Court  distinguish  between  questions  of  real  public 
importance  and  those  whose  decision  is  only  important  to  the 
litigants. 

The  members  of  the  court  have  recommended  the  new  bill  to 
Congress  because  they  believe  it  to  be  the  most  effective  way  of 
speeding  the  disposition  of  causes  before  it  and  therefore  speeding 
justice.  The  gain  which  the  arrears  have  made  upon  the  court 
during  this  last  year  down  to  July  29  is  represented  by  70 
cases^  or  20  per  cent  of  the  whole  number  in  arrear^  and  while  the 
court  will  make  an  effort  to  reduce  the  arrears  the  prospect  is, 
in  view  of  the  great  additions  to  business  in  the  subordinate 
courts,  that  the  court  will  fall  further  and  further  behind. 

I  may  speak  of  a  secondary  reason  why  this  bill  should  pass. 
The  statutes  defining  the  jurisdiction  of  the  Supreme  Court  and 
of  the  circuit  courts  of  appeal  are  not  as  clear  as  they  should  be. 
It  is  necessary  to  consult  a  number  of  them  in  order  to  find  exactly 
what  the  law  is,  and  I  regret  to  say  that  without  clarification  by 
a  revision,  the  law  as  to  the  jurisdiction  of  the  Supreme  Court, 
and  of  the  Circuit  Court  of  Appeals,  is  more  or  less  a  trap,  in 
which  counsel  are  sometimes  caught.  This  bill  removes  all  tech- 
nical penalties  for  mistaken  appellate  remedies. 

Of  course  amendments  could  be  made  which  would  easily  cut 
down  the  work  of  the  Supreme  Court,  if  Congress  wishes  to  adopt 
a  different  function  for  the  federal  courts  than  they  now  have. 
If  it  chooses  to  abolish  the  inferior  federal  courts  or  to  take 
away  their  jurisdiction  in  diverse  citizenship  cases  and  in  cases 
involving  a  federal  question,  as  has  been  suggested  by  some,  it 
would  relieve  business  congestion  in  them  and  in  the  Supreme 
Court.  The  theory  is  advanced  that  a  citizen  of  one  state  now 
encounters  no  prejudice  in  the  trial  of  cases  in  the  state  cotirts 
of  another  state,  and  that  the  constitutional  ground  for  the 
diverse  citizenship  of  federal  courts  has  ceased  to  operate.  If 
the  time  has  come  to  cut  down  the  subject  matter  of  federal 
judicial  jurisdiction,  it  simplifies  much  the  question  of  the  bur- 
den of  work  in  the  federal  courts,  but  that  has  not  been  the  ten- 
dency of  late  years.  I  venture  to  think  that  there  may  be  a 
strong  dissent  from  the  view  that  danger  of  local  prejudice  in 
state  courts  against  non-residents  is  at  an  end.  Litigants  from 
the  eastern  part  of  the  country  who  are  expected  to  invest  their 


WILUAM  HOWABD  TAFT.  259 

capital  in  the  West  or  Souths  will  hardly  concede  the  propoaitiou 
that  their  interests  as  creditors  will  be  as  snre  of  impartial  judicial 
consideration  in  a  western  or  southern  state  court  as  in  a  federal 
court.  The  material  question  is  not  so  much  whether  the  justioe 
administered  is  actually  impartial  and  fair^  as  it  is  wbettier  it 
is  thought  to  be  so  by  those  who  are  considering  the  wisdom  of 
iavesting  their  capital  in  states  where  that  capital  is  needed  for 
the  promotion  of  enterprises  and  industrial  and  comznercial 
progress.  No  single  element — and  I  want  to  emphasize  this  be- 
cause 1  donH  think  it  is  always  thought  of — ^no  single  element  in 
our  governmental  system  has  done  so  much  to  secure  capital  for 
the  legitimate  development  of  enterprises  throughout  the  West 
and  South  as  the  existence  of  federal  courts  there,  jrith  a  juris- 
diction to  hear  diverse  citizenship  cases.  But  of  course  the 
taking  away  of  fundamental  jurisdiction  from  the  federal  courts 
is  within  the  power  of  Congress,  and  it  is  not  for  me  to  disouss 
such  a  legislative  policy.  My  suggestions  are  intended  to  meet 
the  situation  as  it  is,  and  to  secure  some  method  by  which 
civil  litigation  under  existing  law  may  be  promptly  and  justly 
dispatched.  The  trial  of  criminal  cases  in  the  federal  courts  is 
not  within  the  scope  of  this  paper. 

A  perfectly  possible  and  important  improvement  in  the  prac- 
tice in  the  federal  courts  ought  to  have  been  made  long  ago. 
It  is  the  abolition  of  two  separate  courts,  one  of  equity  and  one 
of  law,  in  the  consideration  of  civil  cases.  It  has  been  preserved 
in  the  federal  court,  doubtless  out  of  respect  for  the  phrase  '^  cases 
in  law  and  equity  "  used  in  the  description  of  the  judicial  power 
granted  to  the  federal  government  in  the  C!onstitution  of  the 
United  States.  Many  state  courts  years  ago  abolished  the  dis- 
tinction and  properly  brought  all  litigation  in  their  courts  into 
one  form  of  civil  action.  No  right  of  a  litigant  to  a  trial  by 
jury  on  any  issue  upon  which  he  was  entitled  to  the  nghi  of 
trial  by  jury  at  common  law  need  be  abolished  by  the  diange. 
This  is  shown  by  the  every-day  practice  in  any  state  court  that 
hais  a  code  of  civil  procedure.  The  same  thing  is  true  with 
reference  to  the  many  forms  of  equitable  relief  which  were  intro- 
duced by  the  chancellor  to  avoid  the  inelasticity,  the  rigidity, 
inadequacy  and  injustice  of  common  law  rules  and  remedies.  The 
intervention  of  a  proceeding  in  equity  to  stay  prooeedings  at  com- 


260  BBFOBMS   IN  THS  ADMINISTRATION  OF  JUSTIOB. 

mon  law  and  transfer  the  issues  of  a  case  to  a  hearing  before  the 
chancellor  was  effective  to  prevent  a  jury  trial  at  common  hm  long 
before  our  Constitution,  and  would  not  be  any  more  so  under  a 
procedu]^e  in  which  the  two  systems  of  courts  were  abolished. 
Already  under  the  federal  code,  there  is  a  statutory  provision 
which  has  not  yet  been  much  considered  by  the  courts,  by  which 
an  equitable  defense  may  be  pleaded  to  a  suit  at  law.  Jf  we 
may  go  so  far,  it  is  a  little  difficult  to  see  why  the  distinction 
between  the  two  courts  may  not  be  wholly  abolished,  and  the 
constitutional  right  of  trial  by  jury  retained  unaffected. 

If  the  separation  of  equity  and  law  for  the  purpose  of  admini- 
stration is  to  be  abolished  in  the  federal  system,  and  they  are  to 
be  worked  out  together  in  the  same  tribunal,  then  a  new  procedure 
must  be  adopted.  Who  shall  frame  it?  Shall  Congress  do  it  or 
merely  authorize  it  to  be  done  by  rules  of  court  ?  Congress  from 
the  beginning  of  the  government  has  committed  to  the  Supreme 
Court  the  duty  and  power  to  make  the  rules  in  equity,  the  rules 
in  admiralty,  and  the  rules  in  bankruptcy.  Moreover,  this  Ameri- 
can Bar  Association  has  for  some  years  been  pressing  upon  Con- 
gress the  delegation  of  power  to  the  Supreme  Court  to  regulate  by 
rule  the  procedure  in  suits  at  law.  There  would  seem  to  be  no 
reason  why,  where  the  more  difficult  work  of  uniting  legal  and 
equitable  remedies  in  one  procedure  is  to  be  done,  the  Supreme 
Court,  or  at  least  a  committee  of  federal  judges,  should  not  be 
authorized  and  directed  to  do  it.  Of  course  the  present  statutes 
governing  a  separate  administration  of  law  and  equity  must  be 
amended  or  revised  by  Congress,  and  certain  general  requirements 
be  declared,  but  the  main  task  of  reconciling  the  two  forms  of 
procedure  can  be  best  effected  by  rules  of  court. 

The  same  problem  arose  in  the  courts  of  England  and  has 
been  most  successfully  solved.  By  the  Judicature  Act  of  1873, 
Parliament  vested  in  one  tribunal,  the  Supreme  Court  of  Judi- 
.  cature,  the  adininistration  of  law  and  equity  in  every  cause  coming 
before  it.  This  court  was  made  up  of  the  Court  of  Appeal  and 
of  the  High  Coutt  of  Justice.  By  subsequent  acts,  the  divisions 
of  the  High  Court  were  reduced  to  three:  (1)  The  King's 
Bench,  (2)  Equity,  and  (3)  Probate,  Divorce  and  Admiralty, 
as  they  now  are.  They  are  all  merely  parts  of  the  same  High 
Courts  but  for  convenience  the  suits  are  brought  in  those  di- 


WILUAM  HOWARD  TAFT.  2l6I 

visions  respectively  corresponding  to  the  remedies  sought.  .If 
it  happens  that  what  would  have  been  equitable  relief  is  sought 
in  the  King's  Bench^  it  may  be  granted  there^  but  it  is  more 
likely  to  be  assigned  to  the  Equity  Division^  and  vice  versa. 
Judges  familiar  with  the  equity  practice  are  appointed  to  the 
Equity  Division^  and  those  familiar  with  the  law  side  of  the 
practice  are  sent  to  the  King's  Bench.  Then  there  has  grown 
up  a  separate  branch  of  the  High  Court  in  which  only  coin- 
mercial  cases  are  heard,  and  to  that  court  judges  familiar  with  the 
law  merchant  and  commercial  contracts  and  customs  are  assigned 
and  the  cases  are  heard  and  decided  with  remarkable  dispatch* 
They  are,  perhaps,  agreed  cases,  but  they  are  submitted  and  dis- 
posed of,  most  important  cases,  within  40  days.  There  is  the 
same  division  of  the  practice  among  the  barristers  under  the  in- 
fluence of  the  older  separation  of  law  and  equity  administration: 
The  courts  of  the  High  Court  are,  however,  now  all  one  court, 
with  full  power  to  give  any  kind  of  relief  the  nature  of  the  case 
requires.  Parliament  gave  to  a  committee  of  the  judges  and 
representatives  of  the  barristers  and  solicitors,  power  to  recom-' 
mend  rules  of  practice  for  this  new  system.  The  present  pro- 
cedure is  the  result  of  rules  adopted  in  1883,  amended  from  time 
to  time  by  the  same  authority,  as  the  experience  with  the  existing 
rules  showed  the  necessity.  The  rules  and  amendments  are 
reported  to  Parliament  for  its  rejection  or  amendment,  but 
until  that  is  forthcoming,  they  control  the  procedure. 

It  was  my  good  fortune  during  three  weeks  of  this  summer 
to  be  able  to  attend  the  hearings  of  all  the  various  branches  oi 
the  courts  of  England.  I  have  heard  it  questioned  whether,  in 
view  of  the  report  that  was  given  in  this  country  as  to  my  activi- 
ties in  London  that  were  not  exactly  judicial  or  professional, 
it  was  possible  for  me  to  absorb  any  knowledge  with  reference 
to  the  practice  in  the  English  courts.  I  think  Lord  Shaw  has* 
lent  a  little  support  to  that  view  by  certain  remarks  that  I  have 
heard  him  make.  I  am  not  disposed  to  say  that  in  an  ordinary 
case  suc]^  evidence  would  not  be  convincing.  But  to  m^i  who 
have  attended  ihe  meetings  of  the  American  Bar  Assdciation,  and 
know  what  a  single  individual  of  digestive  experience  can  do  in 
the  matter  of  functions  for  a  week,  a  great  deal  will  seem  possible 
in  three  weeks. 


262  BSFORMS   IN   THB  ADMINI8TRATI0K   OF   JUSTIOB. 

I  may  stop  to  say  that  I  am  deeply  grateful  f^r  the  reception 
which  was  given  me  as  Chief  Justice  by  the  Bench  and  the  Bar  of 
England^  and  for  the  truly  brotherly  spirit  which  they  manifested. 
Of  course,  one  cannot  separate  himself  from  the  personal  in  such 
a  manifestation.  He  knows  it  is  not  really  personal^  but  represen- 
tative, but  he  thanks  God  that  he  happens  to  be  the  personal 
representative  to  receive  it.  They  opened  their  arms.  Every- 
thing that  they  could  do  they  did.  It  showed  to  me  what  I  have 
always  thought  to  be  the  case,  that  one  of  the  strongest  bonds 
between  this  country  and  Britain  is  the  bond  between  professional 
men  of  the  law  and  the  judges  who  have  to  do  with  the  admini- 
stration of  justice  in  both  countries. 

In  connection  with  this  general  subject,  the  treasurer  of  the 
Association,  Mr.  Wadhams  has  asked  me  to  read  a  letter,  which 
I  am  sure  you  will  be  glad  to  hear. 

The  Royal  Courts  of  Justice,  London,  July  21/1922. 

At  the  suggestion  of  Viscount  Cave,  who  enjoyed  the  privilege  of 
the  hospitality  of  the  American  Bar  Association  the  year  before  last, 
and  with  the  approval  of  the  Lord  Chancellor,  I  am  writing  to  you, 
tentatively,  to  ascertain  whether  I  might  send  you  a  formal  mvitation 
to  the  American  Bar  AjBociation  to  hold  their  annual  meeting  in  1924 
in  London.  It  will  be  a  great  honor  and  pleasure  to  the  Bar  of  En- 
gland if  this  could  be  arranged. 

There  are  a  number  of  matters,  such  as  the  time,  the  places  of  meeting, 
and  facilities  which  would  have  to  be  considered,  as  well  bb  minor 
details,  but  if  you  were  to  let  me  know  that  the  invitation  would  be 
acceptable  to  the  American  Bar  Association,  it  would  be  a  pleasure  to 
me  to  send  you  a  formal  invitation  upon  hearing  from  you. 

Perhaps  at  the  same  time  you  would  let  me  know  the  number  who 
would  be  likely  to  come  and  the  time  during  which  the  meeting  would 
last.  These  matters,  however,  I  leave  for  further  consideration,  and 
ask  yoii  to  let  me  know  as  a  preliminary  whether  my  suggestion  is  one 
that  the  American  Bar  Association  would  entertain. 

1  feel  sure  that  there  are  many  of  the  Bench  and  Bar  here  who  would 
be  glad  to  join  in  oflfering  a  welcome  to  your  Association,  and  who 
hope,  as  I  do,  that  the  plan  may  be  found  possible. 

Yours  very  truly, 

Ebnbst  M.  Pollock. 

Sir  Ernest  Pollock  is  the  Attorney-General  of  England. 

With  respect  to  that  suggestion,  I  may  say  that  I  was  in 
attendance  at  the  s»-called  Grand  Night,  at  Gray's  Inn,  in  London. 
The  Lord  Chancellor  was  there ;  so  also  were  the  President  of  the 
Probate,  Divorce,  and  Admiralty  Division,  Sir  Henry  Duke,  Mr. 
Justice  Darling,  Sir  John  Simon,  and  a  number  of  others.  The 
question  of  such  a  visit  was  discussed.    They  were  all  strongly  in 


WILLIAM  %OWABD  TAPT.  263 

fayor  of  it.  And  I  can  assure  you  that  if  the  Association  deems  it 
wise  to  accept  this  for  th^  year  1924^  those  who  go  will  never 
regret  it  or  forget  it.  The  Lord  Chancellor^  Viscount  Birkenhead, 
I  have  been  pressing  to  come  to  this  country  and  attend  the  meet^ 
ing  of  the  American  Bar  Association  next  year.  I  am  not  sure 
how  his  engagements  will  be,  but  that  he  will  be  glad  to  come,  if 
he  can  come,  I  know.  Certainly  the  American  Bar  Association 
would  be  delighted  to  receive  him,  not  only  as  the  highest  judicial 
officer  of  Great  Britain,  but  as  a  man  of  the  greatest  ability  and 
the  greatest  charm,  and  a  man  that  you  would  be  pleased  to  take 
into  your  bosom  as  a  fellow  judge  and  fellow  member  of  the  Bar. 

Now,  having  proved  to  you  that  I  gave  sufficient  attention  to  the 
practice  in  the  Royal  Courts,  I  am  going  to  give  you  my  oon- 
elusions.  I  had  looked  into  the  description  of  the  prooeduie 
which  at  present  obtains  in  those  courts  as  described  in  a  Tery 
useful  book  prepared  by  Mr.  Samuel  Bosenbaum,  of  the  Phila- 
delphia Bar,  entitled,  ^'The  Bule  Making  Authority  in  tbe 
English  Supreme  Court,''  and  I  was  permitted  to  be  present 
and  note  the  practical  operation  of  the  rules.  The  history  of 
their  adoption  is  set  out  in  great  detail  by  Mr.  Bosenbaum,  and 
I  shall  not  detain  you  with  an  attempt  at  even  a  r6ramA  of 
the  growth  of  the  system  and  the  remarkable  character  of  the 
reform  which  was  effected  through  the  rules  in  the  administration 
of  English  justice.  Nor  am  I  competent  to  do  so  with  accuracy 
of  detail.    I  can  only  essay  a  most  general  description. 

If  one  will  read  the  contrast  between  the  dreadful  inadequacy 
of  English  courts  and  the  administration  of  English  justice  in 
1837,  when  Victoria  ascended  the  throne,  and  their  efficiency  and 
admirable  work  in  1887,  when  ehe  celebrated  her  golden  jubilee, 
as  described  by  Lord  Bowen,  one  of  the  great  English  judges,  in 
his  jubilee  essay  on  the  Administration  of  Law,  he  may  well  take 
courage  as  to  what  may  be  done  with  our  system  in  the  way  of 
bettering  it.  Describing  the  result  of  the  change  of  procedure  by 
rules  of  court,  Lord  Bowen  used  these  words : 

A  complete  body  of  rules— which  poasert  the  great  merit  of  elasticity, 
and  which  (subject  to  the  veto  of  Parliament)  is  altered  from  time  to 
time  by  the  judges  to  meet  defects  as  they  appear — governs  the  pro- 
cedure of  the  Supreme  Court  and  all  its  branches.  In  every  cause, 
whatever  its  character,  every  possible  relief  can  be  given  with  or  with- 
out pleadings,  with  or  without  a  formal  trial,  with  or  without  discovery 
of  documents  and  interrogatories,  as  the  nature  of  the  case  prescribes— 
upon  oral  evidence  or  affidavits,  as  is  moat  convenient.    Every  amend- 


.264  BEFORMS  IN  THE  ADMIKATEATXON   OF  JUSTIOB. 

ment  cftn  be  made  at  all  times  and  all  stages  in  any  record,  pleading  or 
proceeding,  that  is  requisite  for  the  purpose  of  deciding  the  real  matter 
m  controversy.  It  may  be  asserted  withotit  fear  of  contradiction  that  it 
is  not  possible  in  the  year  1887  for  an  honest  litigant  in  Her  Majesty's 
Supreme  Court  to  be  defeated  by  any  mere  technicality,  any  slip,  any 
mistaken  step  in  his  litig[ation.  The  expenses  of  the  law  are  stiU  too 
heavy,  uid  have  not  diminished  pcai  passu  with  other  abuses.  But  law 
has  ceased  to  be  a  scientific  game  that  may  be  won  or  lost  by  playing 
some  particular  move. 

The  justness  of  this  summary  is  thus  upheld  by  that  great 

jurist,  Mr.  Dicey : 

Any  critic  who  dispassionately  weighs  these  sentences,  notes  their 
full  meaning,  and  remembers  that  they  are  even  more  true  in  1005 
than  in  1887,  will  partially  imderstand  the  immensity  of  the  achievement 
performed  by  Bentham  and  his  school  in  the  amendment  of  procedure — 
that  is,  in  giving  reality  to  the  legal  rights  of  individuals. 

The  means  by  which  this  reform  was  accomplished  and  the 

av6wed  object  of  the  fiamers  of  the  rules  was  to  effect  ^'  a  change 

in  piocediire  which  would  enable  the  court  at  an  early  stage  of 

the  litigation^  to  obtain  control  over  the  suit  and  exercise  a  close 

supervision  over  the  proceedings  in  the  action.'^     Thus  could 

dilatory  Jsteps  be  eliminated,  imnecessary  discovery  prevented, 

needed  discovery  promptly  had,  and  the  decks  quickly  clearecl  for 

'  the  real  nub  of  the  case  to  be  tried.    It  was  first  proposed  to  dis- 

'  card  pleadings,  but  this  was  abandoned.  Suit  is  begun  by  service 
df  a  writ  of  aummbns.  Shortly  after  the  appeariance  ot  the  defen- 
dant, a  siinimonis  for  directions  is  issued  to  him,  at  the  instance 
of  the  plaintiff,  requiring  him  to  appear  before  a  master  or 
judge  to  settle  the  fiitiire  proceedings  in  the  cause.  In  the  King's 
Bench  this  work  is  done  by  masters.  In  equity  and  commercial 
cases,  it  is  usually  done  by  the  judge  to  whom  the  case  is  assigned. 

'  The  master  or  judge  make9  ah  order  as  to  the  manner  in  which  the 
cdse  shallbe  carried  on  and  tried.  In  cases  in  which  the  original 
writ' is  endorsed  with  notice  that  the  claim  is  for  a  fixed  sum  as 
lipoh  a  contract,  a  sale  of  goods,  a  note  or  otherwise,  and  the 

'  plaintiff  files  an  affidavit  that  there  is  ho  defence,  the  master  may 
Andet  Rule  XIV,  require  the  defendant  to  file  an  affidavit  showing 
that  he  has  a  good  defence  and  specifying  it  before  he  may  file 
answer.  If  he  files  no  such  affidavit,  summary  judgment  goes 
against  him.  In  other  cases,  the  master  or  judge  makes  an  order, 
fixing  time  for  pleadings  and  kind  of  trial,  and  no  step  is  there- 
after taken  without  application  to  the  master  or  judge,  so  that  the 
latter  supervises  all  discovery  sought,  decides  what  is  proper,  and 


WIUJAH  HOWABO  TAJfT.  265 

leqnires  the  partiee  "  to  lay  their  cards  face  up  npoxl  the  table  " 
and  the  real  issue  of  fact  and  law  is  promptly  made  ready  for  the 
trial. 

I  eat  with  Sir  Willes  Ghitty,  the  learned  and  most  effective 
Head  Jtfaster  of  the  Sing's  Bench,  and  saw  the  solicitors  and  some- 
times the  barristers,  come  before  him  to  shape  up  the  issues^  the 
pleadings  and  the  directions  for  trial.  He  knocked  the  beads. ctf 
the  parties  together  so  that  a  clear  issue  between  them  was  quickly 
reached. 

Demurrers  are  abolished.  An  objection  in  point  of  law  may 
be  made  either  before,  at  or  after  the  trial  of  the  facts.  Particu- 
lars in  pleading  may  be  had  by  a  mere  letter  of  inquiry  from 
the  solicitor  of  one  party  to  the  other,  and  any  refusal  is  at 
once  submitted  to  the  master  or  judge.  Should  either  party 
object  to  the  orders  of  a  master,  the  question  can  be  at  OBoe 
referred  to  the  judge  who  is  to  try  the  cause  and  passed  on. 
The  pleadings  are  very  simple.  They  are  a  statement  of  claim 
and  an  answer.  Great  freedom  is  allowed  as  to  joinder  of 
actions  and  parties  and  in  respect  of  setoffs  and  counteiydaims. 
The  pleadings  are  prepared  on  printed  forms  for  use  according 
to  the  rules,  with  details  written  into  the  paragraphs.  The 
nature  of  the  daim  is  stated  in  a  yery  brief  way.  A  blaidc 
paragraph  is  left  in  the  form  for  particulars  as  to  the  main  fiacts 
and  for  references  to  documents  relied  on.  The  main  facts  and 
the  documents  upon  which  each  side  relies  to  establish  its  case  or 
defence  are  thus  brought' out  before  trial,  and  all  in  a  very  short 
time.  Admissions  of  important  facts  are  elicited  by  each  sid^ 
from  the  other  to  save  formal  proof  and  its  expense,  on  peiialty 
of  costs  for  refusal  if  the  fact  proves  to  be  uncontested. 

The  effect  of  the  administration  of  justice  under  these  rules 
can  be  shown  in  some  degree  byjreference  to  the  judicial  statistics 
of  England  and  Wales  for  1919  in  the  disposition  of  cases  in  the 
High  Court  of  Justice,  King's  Bench  Division.  The  summonses 
issued  in  the  King's  Bench  Division  in  a  year  amounted  to 
43,140.  In  14,244  cases,  judgments  were  entered  for  the  plaintiff. 
In  386  cases,  judgments  were  entered  for  the  defendant.  In 
526  cases  other  judgments  were  entered  than  either  for  the 
plaintiff  or  the  defendant,  making  a  totsl  of  15,136  judgments- 
entered  in  the  suits  brought.    This  would  laave  undisposed  of 


266  REFORMS   IN   THE  ADMINI8TRATI0K  OF  JUSTIOB. 

about  28^000  writs  of  summons  issued.    This  sum  represents  the 
suits  brought  which  were  abandoned  or  which  resulted  in  satis- 

.  faction  of  the  claim  without  further  proceeding  beyond  the  issu- 
ing of  the  summons.  Of  the  judgments  rendered^  over  9000 
were  entered  in  default  of  appearance  of  the  defendant;  756  by 
default  other  than  in  default  of  appearance.  3684  judgments 
were  entered  as  summary  judgments  under  Order  14^  because 
the  defendant  would  not  make  the  necessary  affidavit  to  justify 
his  securing  leave  to  answer.  One  hundred  and  forty-one  judg- 
ments were  rendered  after  trial  with  a  jury«  Eight  hundred 
and  thirty-six  judgments  were  rendered  after  trial  without  a 
jury.  Thirty-five  were  rendered  on  the  report  of  the  official 
referee.  Of  the  judgments  for  defendants^  55  were  rendered  after 
trial  with  a  jury,  and  309  after  trial  without  a  jury.  This  shows 
how  thoroughly  the  preliminary  steps  to  the  preparing  of  the  issue 
winnow  out  the  cases  and  dispose  of  them  without  further  clog- 
ging of  the  docket. 

'  The  speed  with  which  this  system  disposes  of  the  business  was 
testified  to  by  the  New  York  State  Laws  Delays  Commission  20 
years  ago.  It  reported  to  the  Governor  of  that  State  in  1903  that 
23  judges  of  the  High  Court  of  Judicature  in  England  actually 
tried  twice  the  number  of  cases  in  a  year  that  41  judges  in  New 
York  City  tried  in  the  same  time,  and  that  the  difference  was  due 

i  to  the  operation  of  summons  for  directions  and  the  summons  for 
summary  judgment.  The  report  was  approved  by  the  Association 
of  the  Bar  of  the  City  of  New  York,  J'udge  Dillon  then  being 
Chairman  of  the  Judiciary  Committee  of  that  body.  Tt  was 
sought  to  introduce  this  reform  for  New  York  City  by  act  of  the 
legislature  providing  for  16  masters,  but  it  is  said  to  have  been 
beaten  by  the  influence  of  those  who  did  not  wish  to  abolish  the 
referee  patronage  in  the  New  York  courts. 

The  English  system  is  adapted  to  the  conditions  prevailing  in 
that  country  and  has  been  built  up  on  the  traditions  of  the  Bench 
and  Bar,  which  do  not  have  the  same  force  here.  Moreover  it  is 
much  more  applicable  to  the  disposition  of  the  litigation  of  a 
great  city  like  New  York,  Chicago  or  Philadelphia,  as  the  New 
York  Commission  found  it  to  be,  than  to  our  federal  courts  of 
first  instance.  In  the  first  place,  the  territorial  jurisdiction  in 
England  is  a  compact  one,  embracing  only  England  and  Wales, 


WILIiIAH  HOWABD  TAPT.  267 

• 

in  w]ych  there  are  nearly  500  county  courts,  disposing,  under 
the  simplest  procedure,  of  much  of  the  business  involving  less  than 
£100  in  law  cases  and  £500  in  equity  cases.  The  branches  of  the 
High  Court  of  Judicature  to  which  these  rules  of  procedure  apply 
are  centered  in  London,  the  judges  live  there,  and  while  the  assizes 
are  held  at  various  towns  in  England  and  in  Wales,  access  to 
London  is  easy,  and  the  natural  result  is  that  the  important  cases 
are  generally  either  brought  in  London  or  ultimately  reach  there 
for  their  disposition.  The  division  of  the  prof essioif  into  barris- 
ters and  solicitors,  and  the  small  number  of  the  active  members  of 
the  Bar,  as  compared  with  our  own,  make  it  easy  to  form  an  at- 
mosphere  of  accommodation  on  the  part  of  counsel  toward  the 
court  and  toward  one  another,  which  could  hardly  exist  in  the 
administration  of  justice  in  a  federal  court  covering  all  or  half  a 
state,  and  involving  litigation  in  which  the  counsel  who  appear  are 
engaged  in  that  court  in  only  a  small  part  of  their  practice.  The 
English  barristers  only  know  their  clients  through  the  briefs  of 
Die  cases  which  are  handed  them  to  enable  them  to  conduct  the 
cause  in  court.  They  present  the  case  in  an  impersonal  way. 
Their  fees  are  fixed  in  advance  and  are  not  contingent.  These 
circumstances  render  much  less  common  efforts  at  delay  and  the 
use  of  legal  procedure  to  prevent  the  prompt  rendition  of  justice. 
More  than  this,  the  system  of  costs  in  the  English  courts,  in  which 
the  defeated  party  is  made  to  pay  the  expenses  of  the  other  side, 
including  solicitors'  and  reasonable  barristers*  compensation,  re- 
strains counsel  by  the  fear  of  penalties  always  imposed  for  use- 
less proceedings. 

The  costs  in  English  courts  would  seem  to  be  too  heavy.  Lord 
Bowen  speaks  of  that  as  a  needed  reform.  I  am  sure  that  we 
never  could  be  induced  to  adopt  the  division  of  the  profession  into 
barristers  and  solicitors,  or  the  English  system  of  costs. 

But  these  differences  should  not  prevent  our  using  a  great  deal 
of  what  has  proved  effective  in  the  English  practice  to  simplify 
procedure  and  speed  justice  in  our  federal  courts.  The  English 
precedent  certainly  demonstrates  the  advantage  of  having  the 
procedure  by  rules  of  court,  framed  by  those  meet  familiar  with 
the  actual  practice  and  its  operation  and  most  acute  to  eliminate 
its  abuses  and  defects. 


268  BSFOEKS  IN  THB  ADMINISTRATION  OF  JUSTIOB. 

What  I  would  suggest  is  that  Congress  provide  for  a.  com- 
mission^ to  be  appointed  by  the  President,  of  two  Supreme  Court 
justices,  two  circuit  judges,  two  district  judges,  and  three  lawyers 
of  prominence  and  capacity  to  prepare  and  recommend  to  Congress 
amendments  to  the  present  statutes  of  practice  and  the  judicial 
code,  authorizing  a  unit  administration  of  law  and  equity  in  one 
form  of  civil  action.  The  act  should  provide  for  a  permanent 
commission  similarly  created,  with  power  to  prepare  a  system  of 
rules  of  procedure  for  adoption  by  the  Supreme  Court.  Power  to 
amend  from  time  to  time  should  also  be  given.  The  rules  and  their 
amendments,  after  approval  by  the  court,  should  be  submitted  to 
Congress  for  its  action,  but  should  become  effective  in  six  months, 
if  Congress  takes  no  action.  In  this  way  the  procedure  would  be 
framed  by  those  most  familiar  with  it  and  by  those  whose  duty  it 
is  to  enforce  it  The  advantage  of  experiment  in  the  laboratory 
of  the  courts  would  furnish  valuable  suggestions  for  bettering 
the  system.  The  important  feature  of  such  a  system  is  that  needed 
action  by  the  commission  and  the  court  will  be  promptly  t&ken 
and  the  necessary  delay  in  a  Congress  crowded  with  business 
may  be  avoided. 

The  reforms  that  I  have  been  advocating  involve  some  increase 
in  the  power  of  the  judges  of  the  courts,  either  in  the  matter  of 
the  assignment  of  judges,  in  the  matter  of  the  enlargement  of  the 
certiorari  power,  or  in  the  adoption  of  more  comprehensive  rulee 
of  procedure.  I  am  well  aware  that  they  will  be  opposed  solely 
on  this  ground,  and  that  the  objection  is  likely  to  win  support 
because  of  this.  It  is  said  that  judges  are  prone  to  amplify  their 
powers — that  this  is  human  nature,  and  therefore  the  conclusion 
is  that  their  powers  ought  not  to  be  amplified,  however  much  good 
this  may  accompUsh  in  the  end.  The  answer  to  this  is  that  if  the 
power  is  abused,  it  is  completely  within  the  discretion — ^indeed 
within  the  duty — of  the  legislature  to  take  it  away  or  modify  it. 

Dependence  upon  action  of  Congress  to  effect  reform  to  remove 
delays  and  to  bring  about  speed  in  the  administration  of  justice 
has  not  brought  the  best  results,  and  some  different  mode  should 
be  tried.  The  failures  of  justice  in  this  country,  especially  in 
the  state  courts,  have  been  more  largely  due  to  the  withholding 
of  power  from  judges  over  proceedings  before  them  than  to  any 
other  cause ;  and  yet  judges  have  to  bear  the  brunt  of  the  criticism 


WILLIAli  HOWABD  TAFT.  269 

which  is  so  general  as  to  the  results  of  present  court  action.  The 
judges  should  be  given  the  power  commensurate  with  their  re- 
sponsibility. Their  capacity  to  reform  matters  should  be  tried 
to  see  whether  better  results  may  not  be  attained.  Federal  judges 
doubtless  have  their  faults^  but  they  are  not  chiefly  responsible 
for  the  present  defects  in  the  administration  of  justice  in  the 
federal  courts.  Let  Congress  give  them  an  opportunity  to  show 
what  can  be  done  by  vesting  in  them  sufiScient  discretion  for  the 
purpose. 


THE  LIMITATIONS  OP  LAW. 

ST 

CALVIN  COOLIDGE, 

VICB-PRESIDBNT  OF  THB  UNITED  8TATB8. 

The  growing  multiplicity  of  laws  has  often  been  obseryed.  The 
National  and  State  Legislatures  pass  acts^  and  their  courts  de- 
liver opinions,  which  each  year  run  into  scores  of  thousands.  A 
part  of  this  is  due  to  the  increasing  complexity  of  an  advancing 
civilization.  As  new  forces  come  into  existence  new  relationships 
are  created,  new  rights  and  obligations  arise,  which  reouire  estab- 
lishment and  definition  by  legislation  and  decision.  Tnese  are  all 
the  natural  and  inevitable  consequences  of  the  growth  of  ^reat 
cities,  the  development  of  steam  and  electricity^  the  use  of  the 
corporation  as  the  leading  factor  in  the  transaction  of  business, 
and  the  attendant  regulation  and  control  of  the  powers  created 
by  these  new  and  mighty  agencies. 

This  has  imposed  a  legal  burden  against  which  men  of  affairs 
have  been  wont  to  complain.  But  it  is  a  burden  which  does  not 
differ  in  its  nature  from,  the  public  requirement  for  security, 
sanitation,  education,  the  maintenance  of  highways,  or  the  other 
activities  of  government  necessary  to  support  present  standards. 
It  is  all  a  part  of  the  inescapable  burden  of  existence.  It  follows 
the  stream  of  events.  It  does  not  attempt  to  precede  it.  As 
human  experience  is  broadened,  it  broadens  with  it.  It  represents 
a  growth  altogether  natural.    To  resist  it  is  to  resist  progress. 

But  there  is  another  part  of  the  great  accumulating  body  of  our 
laws,  that  has  been  rapidly  increasing  of  late,  which  is  the  result 
of  other  motives.  Broadly  speaking  it  is  the  attempt  to  raise  the 
moral  standard  of  society  by  legishtion. 

The  spirit  of  reform  is  altogether  encouraging.  The  organized 
effort  and  insistent  desire  for  an  equitable  distribution  of  the 
rewards  of  industry,  for  a  wider  justice,  for  a  more  consistent 
righteousness  in  human  affairs,  is  one  of  the  most  stimulating  and 
hopeful  signs  of  the  present  era.  There  ought  to  be  a  militant 
public  demand  for  progress  in  this  direction.  The  society  which 
is  satisfied  is  lost.  But  in  the  accomplishment  of  these  ends 
there  needs  to  be  a  better  understanding  of  the  province  of 
legislative  and  judicial  action.  There  is  danger  of  disappoint- 
ment and  disaster  unless  there  be  a  wider  comprehension  of  the 
limitations  of  the  law. 

The  attempt  to  regulate,  control  and  prescribe  all  manner  of 
conduct  and  social  relations  is  very  old.  It  was  always  the  practice 
of  primitive  peoples.     Such  governments  assumed  jurisdiction 

(270) 


OALVIN   COOLIDGB.  271 

over  the  action,  property^  life,  and  even  religions  convictions  of 
their  citizens  down  to  the  minutest  detail.  A  large  part  of  the 
history  of  free  institutions  is  the  history  of  the  people  struggling 
to  emancipate  themselves  from  all  of  this  bondage. 

I  do  not  mean  by  this  that  there  has  been,  or  can  be,  any  prog- 
ress in  an  attempt  of  the  people  to  exist  without  a  strong  and 
vigorous  government.  That  is  the  only  foundation  and  the  only 
support  of  all  civilization.  But  progress  has  been  made  by  the 
people  relieving  themselves  of  the  imwarranted  and  unnecessary 
impositions  of  government.  There  exists,  and  must  always  exist, 
the  righteous  authority  of  the  state.  That  is  the  sole  source  of  the 
liberty  of  the  individual,  but  it  does  not  mean  an  inquisitive  and 
officious  intermeddling  by  attempted  government  action  in  all 
the  affairs  of  the  people.  There  is  no  justification  for  public 
interference  with  purely  private  concerns. 

Those  who  foimded  and  established  the  American  Government 
had  a  very  clear  understanding  of  this  principle.  They  had 
suffered  many  painful  experiences  from  too  much  public  super- 
vision of  their  private  affairs.  The  people  of  that  period  were 
very  jealous  of  all  authority.  It  was  only  the  statesmanship  and 
resourcefulness  of  Hamilton,  aided  by  the  great  influence  of  t^^ 
wisdom  and  character  of  Washington,  and  the  sound  reasoning 
of  the  very  limited  circle  of  their  associates,  that  succeeded  in 
proposing  and  adopting  the  American  Constitution.  It  estab- 
lished a  vital  government  of  broad  powers  but  within  distinct  and 
prescribed  limitations.  Under  the  policy  of  implied  powers 
adopted  by  the  Federal  Party,  its  authority  tended  to  enlarge. 
But  under  the  administration  of  Jefferson,  who,  by  word  though 
not  so  much  by  deed,  questioned  and  resented  almost  all  &e 
powers  of  government,  its  authority  tended  to  diminish  and,  but 
for  the  great  judicial  decisions  of  John  Marshall,  might  have 
become  very  uncertain.  But  while  there  is  ground  for  criticism 
in  the  belittling  attitude  of  Jefferson  towards  established  govern- 
ment, there  is  even  larger  ground  for  approval  of  his  policy  of 
preserving  to  the  people  the  largest  possible  jurisdiction  and  * 
authority.  After  all,  ours  is  an  experiment  in  self-government 
by  the  people  themselves,  and  self-government  cannot  be  reposed 
wholly  in  some  distant  capital,  it  has  to  be  exercised  in  part  by 
the  people  in  their  own  homes. 

So  intent  were  the  founding  fathers  on  establishing  a  con- 
stitution which  was  confined  to  the  fundamental  principles  of 
government  that  they  did  not  turn  aside  even  to  deal  with  the 
great  moral  <][uestion  of  slavery.  That  they  comprehended  it 
and  regarded  it  as  an  evil  was  clearly  demonstrated  by  Lincoln 
in  his  Cooper  Union  speech  when  he  showed  that  substantially 
all  of  them  had  at  some  time,  by  public  action,  made  clear  their 
opposition  to  the  continuation  of  this  great  wrong.    The  early 


272  THB  LIMITATIONS  OF  LAW. 

amendments  were  all  in  diminution  ol  the  power  of  the  g07emi- 
ment  and  declaratory  of  an  enlarged  sovereignty  of  the  people. 

It  was  thus  that  our  institutions  stood  for  the  better  part  of  a 
century.  There  were  the  centralizing  tendencies  and  the  amend- 
ments arising  out  of  the  War  of  ^61.  But  while  they  increased  to 
some  degree  the  power  of  the  national  govemmenty  they  were  in 
chief  great  charters  of  liberty^  confirming  rights  already  enjojred 
by  the  majority,  and  undertaJ^ing  to  extend  and  guarantee  like 
rights,  to  those  formerly  deprived  of  equal  protection  of  the  laws. 
During  most  of  this  long  period  the  trend  of  public  opinion  and 
of  l^islation  ran  in  the  same  direction.  This  was  exemplified  in 
the  executive  and  legislative  refusal  to  renew  the  United  States 
bank  charter  before  the  war,  and  in  the  judicial  decision  in  the 
slaughterhouse  cases  after  the  war.  This  decision  has  been  both 
criticised  and  condemned  in  equally  high  places,  but  the  result 
of  it  was  perfectly  clear.  It  was  on  the  side  of  leavinff  to  the 
people  of  the  several  states,  and  to  their  legislatures  and  courts, 
jurisdiction  over  the  privileges  and  immunities  of  themselves  and 
their  own  citizens. 

During  the  past  30  years  the  trend  has  been  in  the  opposite 
direction.  Urged  on  by  the  force  of  public  opinion,  national 
legislation  has  been  very  broadly  extended  for  the  purpose  of 
promoting  the  general  welfare.  New  powers  have  been  delegated 
to  the  Congress  by  constitutional  amendments  and  former  grants 
have  been  so  interpreted  as  to  extend  legislation  into  new  fields. 
This  has  run  its  course  from  the  Interstate  Commerce  Act  of  the 
late  eighties,  through  the  various  regulatory  acts  under  the  com- 
merce and  tax  clauses,  down  to  the  maternity  aid  law  which 
recently  went  into  effect.  Much  of  this  has  been  accompanied  by 
the  establishment  of  various  commissions  and  boards,  often  clothed 
with  much  delegated  power,  and  by  providiag  those  already  in 
existence  with  new  and  additional  authority.  The  national  gov- 
ernment has  extended  the  scope  of  its  legislation  to  include  many 
kinds  of  regulation,  the  determination  of  traffic  rates,  hours  of 
labor,  wages,  sumptuary  laws,  and  into  the  domain  of  oversight  of 
the  public  morals. 

This  has  not  been  accomplished  without  what  is  virtually  a 
change  in  the  form,  and  actually  a  change  in  the  process,  of  our 
government.  The  power  of  legislation  has  been  to  a  large  extent 
recast,  for  the  old  order  looked  on  these  increased  activities  with 
much  concern.  This  has  proceeded  on  the  theory  that  it  would 
be  for  the  public  benefit  to  have  government,  to  a  greater  degree, 
thfe  direct  action  of  the  people.  The  outcome  of  this  docSrine 
Has  been  the  adoption  of  the  direct  primary,  the  direct  election 
of  United  States  Senators,  the  curtailment  of  the  power  of  the 
Speaker  of  the  House,  and  a  constant  agitation  for  breaking  down 
the  authority  of  decisions  of  the  courts.    This  is  not  the  govern- 


OALVIK  COOIJDGE4  S73 

meat  which  was  pat  into  fonn  by  Washington  and  Hamilton  and 
popularized  by  Jefferson.  Some  of  the  stabilizing  safeguards 
which  they  had  provided  have  been  weakened.  The  representa- 
tive element  has  been  diminished  and  the  democratic  element  has 
been  increased^  but  it  is  still  constitutional  government^  it  still 
requires  time,  due  deliberation,  and  the  consent  of  the  states  to 
change  or  modify  the  fundamental  law  of  the  nation. 

Advancing  along  this  same  line  of  centralization,  of  more  and 
more  legislation,  of  more  and  more  power  on  the  part  of  the 
national  government,  there  have  been  proposals  from  time  to  time 
which  would  make  this  field  almost  unlimited.  The  authority 
to  make  laws  is  conferred  by  the  very  first  article  and  section  of 
the  Constitution,  but  it  is  not  general,  it  is  limited*  It  is  not 
'^  all  legislative  powers/^  but  it  is  ^'  all  legislative  powers  herein 
granted  shall  be  vested  in  a  Congress  of  the  United  States.^'  The 
purpose  of  that  limitation  was  in  part  to  prevent  encroachment 
on  the  authority  of  the  states,  but  more  especially  to  safeguard 
and  protect  the  liberties  of  tiie  people.  The  men  of  that  day  pro- 
posed to  be  the  custodians  of  their  own  freedom.  In  the  tyran- 
nical acts  of  the  British  Parliament  they  had  seen  enough  of  a 
legislative  body  claiming  to  be  clothed  with  unlimited  powers. 

For  the  purpose  of  protecting  the  people  in  all  their  rights  so 
dearly  bought  and  so  solemnly  declared,  the  Third  Article  estab- 
lished one  Supreme  Court  and  vested  it  with  judicial  power  over 
all  cases  arising  under  the  Constitution.  It  is  that  court  which 
has  stood  as  the  guardian  and  protector  of  our  form  of  govemr 
ment,  the  guarantee  of  the  perpetuity  of  the  Constitution,  and 
above  all  the  great  champion  of  the  freedom  and  the  liberty  of 
the  people.  No  other  known  tribunal  has  ever  been  devised  in 
whicn  the  people  could  put  their  faith  and  confidence,  to  which 
they  could  entrust  their  choicest  treasure,  with  a  like  assurance 
that  there  it  would  be  secure  and  safe.  There  is  no  power,  no 
influence,  great  enough  to  sway  its  judgments.  There  is  no 
petitioner  humble  enough  to  be  denied  the  full  protection  of  its 
great  authority.  This  court  is  human,  and,  therefore,  not  infal- 
lible, but  in  the  more  than  one  hundred  and  thirty  years  of  its 
existence  its  decisions  which  have  not  withstood  the  questioning 
of  criticism  could  almost  be  counted  upon  one  hand.    In  it  the 

«eople  have  the  warrant  of  stability,  of  progress,  and  of  humanity. 
T'herever  there  is  a  final  authority  it  must  be  vested  in  mortal 
men.  There  has  not  been  discovered  a  more  worthy  lodging  place 
for  such  authority  than  the  Supreme  Court  of  the  United  States. 
Such  is  the  legislative  and  judicial  power  that  the  people  have 
established  in  their  government.  Becognizing  the  latent  forces 
of  the  Constitution,  which  in  accordance  with  the  spirit  of  the 
times  have  been  drawn  on  for  the  purpose  of  promoting  the  public 
welfare,  it  has  been  very  seldom  that  the  cOTirt  has  been  compelled 


274  THE  LIKITATI0K8  OP  LAW. 

to  find  that  any  humanitarian.  legislation  was  beyond  the  power 
which  the  people  had  granted  to  the  Congress.  When  such  a 
decision  has  been  made,  as  in  the  recent  case  of  the  Child  Labor 
Jjaw,  it  does  not  mean  that  the  court  or  nation  wants  child  labor, 
but  it  simply  means  that  the  Congress  has  gone  outside  of  the 
limitations  prescribed  for  it  by  the  people  in  their  Constitution 
and  attempted  to  legislate  on  a  subject  which  the  several  states, 
and  the  people  themselyes,  have  chosen  to  keep  under  their  own 
control. 

Should  the  people  desire  to  have  the  Congress  pass  laws  relat- 
ing to  that  over  which  they  have  not  yet  granted  to  it  any  juris- 
diction, the  way  is  open  and  plain  to  proceed  in  the  same  method 
that  was  taken  in  relation  to  income  taxes,  direct  election  of 
Senators,  equal  sufiFrage,  or  prohibition,  by  an  amendment  to  the 
Constitution. 

One  of  the  proposals  for  enlarging  the  present  field  of  legisla- 
tion has  been  to  give  the  Congress  authority  to  make  valid  a  pro- 
posed law  which  the  Supreme  Court  had  declared  wm  outside 
the  authority  granted  by  the  people,  by  the  simple  device  of  re- 
enacting  it.  Such  a  provision  would  make  the  Congress  finally 
supreme.  In  the  last  resort  its  powers  practically  would  b6  un- 
limited. This  would  be  to  do  away  with  the  great  main  principle 
of  our  written  Constitution,  which  regards  the  people  as  sovereign, 
and  the  government  as  their  agent,  and  would  tend  to  make  the 
legislative  body  sovereign  and  the  people  its  subjects.  It  would, 
to  an  extent,  substitute  for  the  will  of  the  people,  definitelv  and 
permanently  expressed  in  their  written  Constitution,  the  chanff- 
ing  and  uncertain  will  of  the  Congress.  That  would  radically 
alter  our  form  of  government  and  take  from  it  its  chief  guarantee 
of  freedom. 

This  enlarging  magnitude  of  legislation,  these  continual  pro- 
posals for  changes  under  which  law  might  become  very  excessive, 
whether  they  result  from  the  praiseworthy  motive  of  promoting 
general  reform  or  whether  they  reflect  the  raising  of  the  general 
standard  of  human  relationship,  require  a  new  attitude  on  the 
part  of  the  people  towards  their  government.  Our  country  has 
adopted  this  course.  The  choice  has  been  made.  It  could  not 
withdraw  now  if  it  would.  But  it  makes  it  necessary  to  guard 
against  the  dangers  which  arise  from  this  new  position.  It  makes 
it  necessary  to  keep  in  mind  the  limitation  of  what  can  be 
accomplished  by  law.  It  makes  it  necessary  to  adopt  a  new 
vigilance.  It  is  not  sufficient  to  secure  legislation  of  this  nature 
and  leave  it  to  go  alone.  It  cannot  execute  itself.  Oftentimes 
it  will  not  be  competently  administered  without  the  assistance  of 
vigorous  support.  There  must  nqt  be  permitted  any  substitution 
of  private  will  for  public  authority.  There  is  required  a  renewed 
and  enlarged  determination  to  3^c^^^  the  observance  and  enforce^ 
ment  of  the  law. 


CALVIN   OOOLI0GS.  276 

So  long  as  the  national  government  confined  itself  to  providing 
those  fundamentals  of  liberty,  order  and  justice  for  which  it  was 
primarily  established,  its  course  was  reasonably  clear  and  plain. 
No  large  amount  of  revenue  was  required.  No  great  swarms  of 
public  employees  were  necessary.  There  was  little  clash  of  special 
interests  or  different  sections,  and  what  there  was  of  this  nature 
consisted  not  of  petty  details  but  of  broad  principles.  There  was 
time  for  the  consideration  of  great  questions  of  policy.  There  was 
an  opportunity  for  mature  deliberation.  What  the  government 
undertook  to  do  it  could  perform  with  a  fair  degree  of  accuracy 
and  precision. 

But  this  has  all  been  changed  by  embarking  on  a  policy  of  a 
general  exercise  of  police  powers,  by  the  public  control  of  much 
private  enterprise  and  private  conduct,  and  of  furnishing  a 
public  supply  for  much  private  need.  Here  are  these  enormons 
obligations  which  the  people  found  they  themselves  were  imper^ 
f ectly  discharging.  They  therefore  undertook  to  lay  their  burdens 
on  the  national  government.  Under  this  weignt  the  former 
accuracy  of  administration  breaks  down.  The  government  has 
not  at  its  disposal  a  supply  of  ability,  honesty  and  character,  neces- 
sary for  the  solution  of  all  these  problems,  or  an  executive  capacity 
great  enough  for  their  perfect  administration.  Nor  is  it  in  the 
possession  of  a  wisdom  which  enables  it  to  take  great  enterprises 
and  manage  them  with  no  ground  for  criticism.  We  cannot  rid 
ourselves  of  the  human  element  in  our  affairs  by  an  act  of 
legislation  which  places  them  under  the  jurisdiction  of  a  public 
commission. 

The  same  limit  of  the  law  is  manifest  in  the  exercise  of  the 
police  authority.  There  can  be  no  perfect  control  of  personal 
conduct  by  national  legislation.  Its  attempt  must  be  accompanied 
with  the  full  expectation  of  very  many  failures.  The  problem  of 
preventing  vice  and  crime,  and  of  restraining  personal  and  organ- 
ized selfishness  is  as-  old  as  human  experience.  We  shall  not  find 
for  it  an  immediate  and  complete  solution  in  an  amendment  to 
the  federal  Constitution,  an  act  of  Congress,  or  in  the  findings  of 
a  new  board  or  commission.  There  is  no  magic  in  government, 
not  possessed  by  the  public  at  large,  by  which  these  things  can  be 
done.  The  people  cannot  divest  themselves  of  their  really  great 
burdens  by  undertaking  to  provide  that  they  shall  hereaiter  be 
borne  by  the  government. 

When  provision  is  made  for  far-reaching  action  by  public 
authority,  whether  it  be  in  the  nature  of  an  expenditure  of  a. 
large  sum  from  the  treasury,  or  thf  participation  in  a  great  moral 
reform,  it  all  means  the  imposing  of  large. additional  obligations 
upon  ti)0  people.  In  the  last  resort  it  is  the  people  who  must 
respond,    The^  are  the  n^lji^ry  powf F;  they  are  the  financial 


\ 


276  THE  LXKITATI0N8  OF  LAW. 

power,  they  are  the  moral  power  of  the  govemment  There  is 
and  can  be  no  other.  When  a  broad  rule  of  action  is  laid  down  by 
law  it  iB  tiiey  who  mnst  perform. 

If  this  condnfiion  be  sound  it  becomes  necessarr  to  avoid  the 
danger  of  asking  of  the  people  more  than  they  can  ao.  The  times 
are  not  without  evidence  of  a  deep-seated  discontent  not  confined 
to  any  one  locality  or  walk  of  Uf  e,  but  shared  in  generally  by  those 
who  contribute  by  the  toil  of  their  hand  and  brain  to  the  carrying 
on  of  American  enterprise.  This  is  not  the  muttering  of  agi- 
tators, it  is  the  conviction  of  the  intelligence,  industry  and  char- 
acter of  the  nation.  There  is  a  state  of  alarm,  however  un- 
warranted, on  the  part  of  many  people  lest  they  be  unable  to  main- 
tain themselves  in  their  present  positions.  There  is  an  apparent 
fear  of  loss  of  wages,  loss  of  pronts  and  loss  of  place.  There  is  a 
discernible  physical  and  nervous  exhaustion  which  leaves  tiie 
country  with  little  elasticity  to  adjust  itself  to  the  strain  of  events. 

As  the  standard  of  civilization  rises  there  is  necessity  for  a 
larger  and  larger  outlay  to  maintain  the  cost  of  existence.  As  the 
activities  of  government  increase,  as  it  extends  its  field  of  opera- 
tions, the  initial  tax  which  it  requires  becomes  manifolded  many 
times  when  it  is  finally  paid  by  the  ultimate  consumer.  When 
there  is  added  to  this  aggravated  financial  condition  an  increasing 
amount  of  regulation  and  police  control,,  the  burden  of  it  all 
becomes  very  great. 

Behind  very  many  of  these  enlarging  activities  lies  the  un- 
tenable theory  that  there  is  some  shortncut  to  perfection.  It  is 
conceived  that  there  can  be  a  horizontal  elevation  of  the  standards 
of  the  nation,  immediate  and  perceptible,  b^  the  simple  device  of 
new  laws.  This  has  never  been  the  case  m  human  experience. 
Progress  is  slow  and  the  result  of  a  long  and  arduous  process  of 
self-discipline.  It  is  not  conferred  upon  the  people,  it  comes, 
from  the  people.  In  a  republic  the  law  reflects  rather  than  makes 
the  standard  of  conduct  and  the  state  of  public  opinion.  Beal. 
reform  does  not  begin  with  a  law,  it  ends  with  a  law.  The  attempt 
to  dragoon  the  body  when  the  need  is  to  convince  the  soul  will 
end  only  in  revolt. 

Under  the  attempt  to  perform  the  impossible  there  sets  in  a 
general  disintegration.  When  legislation  fails  those  who  look 
upon  it  as  a  sovereign  remedy  simply  cry  out  for  more  legislation. 
A  sound  and  wise  statesmanship  which  recognizes  and  attempts 
to  abide  by  its  limitations  will  undoubtedly  find  itself  displaced 
by  that  type  of  public  official  who  promises  much,  talks  much, 
Wislates  much,  expends  much,  but  accomplishes  little.  The 
ddiberate,  sound  judgment  of  the  country  is  likely  to  find  it 
has  been  superseded  by  a  popular  whim.  The  independence  of 
th^  l^slator  is  broken  down.    The  enforcement  of  the  law  bQ- 


OALYIN  COOUDOS.  277 

comes  uncertain.  The  courts  fail  in  their  function  of  speedy 
and  accurate  justice^  their  judgments  are  questioned  and  their 
independence  is  threatened.  The  law,  changed  and  changeable  on 
slight  provocation/  loses  its  sanctity  and  authority.  A  continua- 
tion of  this  condition  opens  the  road  to  chaos. 

These  dan^rs  must  be  recognized.  These  limits  must  be  ob- 
served.  Having  embarked  the  government  upon  the  enterprise  of 
reform  and  reflation  it  must  be  realized  that  unaided  and  alone 
it  can  accomplish  very  little.  It  is  only  one  element,  and  that  not 
the  most  powerful,  in  the  promotion  of  progress.  When  it  goes 
into  this  broad  field  it  can  furnish  to  the  people  only  what  the 
people  furnish  to  it.  Its  measure  of  success  is  limited  by  the 
measure  of  their  service. 

This  is  very  far  from  being  a  conclusion  of  discouragement. 
It  ia  very  far  from  being  a  conclusion  that  what  legislation  can- 
not do  for  the  people  they  cannot  do  for  themselves.  The  limit 
of  what  can  be  done  by  the  law  is  soon  reached,  but  the  limit 
of  what  can  be  done  by  an  aroused  and  vigorous  citizenship  has 
never  been  exhausted.  In  undertaking  to  bear  these  burdens  and 
solve  these  problems  the  government  needs  the  continuing  indul- 
gence, cooperation  and  support  of  the  people.  When  the  public 
understands  that  there  must  be  an  increased  and  increasing  effort, 
such  effort  will  be  forthcoming.  They  fire  not  ignorant  of  the 
personal  equation  in  the  administration  of  their  affairs.  When 
trouble  arises  in  any  quarter  they  do  not  inquire  what  sort  of  a 
law  they  have  there,  but  they  inquire  what  sort  of  a  governor  and 
sheriff  they  have  there.  They  will  not  long  fail  to  observe,  that 
what  kind  of  government  they  have  depends  upon  what  kind  of 
citizens  they  have. 

It  is  time  to  supplement  the  appeal  to  law,  which  is  limited, 
with  an  appeal  to  tiie  spirit  of  the  people,  which  is  unlimited. 
Some  unsettlements  disturb,  but  they  are  temporary.  Some 
factious  elements  eziat,  but  they  are  smalL  No  assessment  of 
the  material  conditions  of  Americans  can  warrant  anything  but 
the  highest  courage  and  the  deepest  faith.  No  reliance  upon 
the  national  character  has  ever  been  betrayed.  No  survey  which 
goes  below  the  surface  can  fail  to  discover  a  solid  and  substantial 
foundation  for  satisfaction.  But  our  countrymen  must  remem- 
ber that  they  have  and  can  have  no  dependence  save  themselves. 
Our  institutions  are  their  institutions.  Our  government  is  their 
government.  Our  laws  are  their  laws.  It  is  lor  them  to  enforce, 
support  and  obey.  If  in  this  they  fail,  there  are  none  who  can 
succeed.  The  sanctity  of  duly  constituted  tribunals  must  be 
"maintained.  Undivided  allegiance  to  public  authority  must  be 
'required.'  With  a  citizenship  which  voluntarily  establishes  and 
defends  {hese,  the  cause  of  America  is  secure.  Without  that  all 
else  is  of  little  avail. 


PBELIMINARY  EDUCATION  FOR  LAWYBBS. 

BY 

NICHOLAS  MURRAY  BUTLER, 

OF   NEW   TOBK. 

Into  this  notable  gathering  of  jurists  and  juris-consulta  and 
practitioners  of  the  law,  I  may  only  presume  to  come  as  the 
spokesman  of  the  inconspicuous  and  often  humble  client.  In 
these  days  of  the  economic  interpretation  of  history,  the  client 
may  perhaps  be  said  to  be  the  economic  basis  upon  which  courts 
and  judicial  systems  and  the  practice  of  the  law  rest.  I  am, 
therefore,  in  accord  with  the  spirit  of  the  times  in  speaking  for 
a  few  moments  from  the  view-point  of  the  layman. 

Lord  Melbourne,  who  won  the  high  distinction  of  lifting  com- 
mon sense  to  the  plane  of  philosophy,  once  said :  '^  It  is  tire- 
some to  educate;  it  is  tiresome  to  be  educated;  it  is  tiresome 
to  discuss  education.''  And,  without  venturing  to  contradict 
so  eminent  an  authority,  I  shall  endeavor  to  combat  the  neces- 
sary tedium  of  this  discussion  with  the  soul  of  wit,  which  is 
brevity. 

All  civilized  peoples  throw  protection  about  their  public  serv- 
ices, and  all  civilized  peoples  fix  increasingly  severe  standards 
of  admission  to  permanent  public  service.  I  presume  that,  in 
an  earlier  and  an  older  day,  any  calling  or  any  profession  or  any 
practice,  save  that,  perhaps,  of  the  priesthood,  was  open  to 
anyone  whose  spirit  might  turn  him  in  that  particular  direction. 
But  one  calling  and  one  profession  after  another  has  been 
singled  out  as  needing  organization,  protection,  and  studious 
and  careful  preparation.  Long  ago  the  three  learned  professions 
were  developed.  Their  number  has  now  been  increased  by 
that  of  the  engineer,  by  that  of  the  architect,  by  that  of  the 
teacher,  and  it  is  now  being  added  to  by  that  of  the  journalist, 
by  that  of  the  pharmacist,  and  various  others — the  members  of 
other  organized  professions. 

The  three  learned  professions  became  such  because  it  was 
apparent  that  their  practice  was  not  a  matter  of  mere  haphazard, 
not  a  matter  of  mere  empirical  examination  of  a  new  and  definite 

(278) 


NICHOLAS  MURRAY  BUTLBR.  279 

« 

body  of  f  acts^  bnt  that  their  practice  rested  upon  a  body  of  tested 
and  organized  knowledge  which  had  become  a  part  of  human 
experience,  and  was  on  its  way  to  be  developed  into  a  science. 
When  our  organized  hnman  knowledge  gets  to  the  point  that 
we  are  enabled  to  predict  with  reasonable  accuracy,  we  have  the 
elements  of  a  scientific  comprehension  of  a  given  field  of  hnman 
interest 

I  think  there  are  few  more  interesting  things  in  the  history 
of  the  intellectual  life  of  men  than  the  development  of  the 
medieval  universities  out  of  the  necessities  and  out  of  the  as- 
pirations of  human  society.  As  members  of  this  Association 
doubtless  well  know,  the  great  University  of  Bologna,  the  pioneer 
of  them  all,  was  originally  solely  a  school  of  law.  Men  joilmeyel 
there,  and  women,  too,  over  hundreds  of  miles  oif  mountains 
and  plains  and  rivers,  in  order  to  hear  Imerius  discuss  the  princi- 
ples of  the  Boman  Law.  The  fires  that  were  lighted  at  Bologna 
have  been  burning  with  increasing  brilliance  ever  since.  And 
today,  the  study  of  the  law  is  one  of  the  most  highly  organized, 
one  of  the  most  precise,  and  one  of  the  best  ordered  of  all  our 
intdlectual  endeavors. 

But  in  a  democratic  society,  there  are  naturally  those  who 
raise  their  voices  against  so  high  and  so  precise  a  standard  for  a 
training  as  will  shut  out, — and  I  use  the  name  because  I  hare 
heard  it  so  frequently  in  these  discussions — ^Abrah^m  Lincoln. 
My  reflection  upon  that  is  that  as  we  produce  Abraham  Lin*- 
coins,  we  shall  doubtless  be  able  to  deal  with  them  without  public 
damage. 

We  have  now  come  to  the  point,  however,  where  this  organized 
study  of  the  law  as  law  is  not  all  that  is  necessary  and  adequate 
for  the  care  and  the  guidance  of  the  litigation  of  those  great, 
manifold,  human  interests  and  activities  that  constitute  modem 
society  and  the  modem  state.  The  economic  basis  upon  which 
our  social  order  rests  has  undergone  grave  and  far-reaching 
changes  since  the  common  law  took  its  form,  and  since  the  civil 
law  was  thrown  into  code.  The  layman  sees  in  a  legal  settle- 
ment, a  judicial  decision,  by  the  highest  court  of  his  land, 
an  adjustment  of  facts.  The  lawyer  sees  an  application  of 
principles.  Those  principles  are  perhaps  hidden  from  the  lay- 
man.   He  is  concerned  with  the  facts^  with  what  seems  to  him, 


280  PBELIMIKABT  EDUOATION   FOB  LAWYEB6. 

from  his  point  of  view>  a  selfiflh  (me  perhaps,  to  be  fair  and  right 
and  just  and  orderly.  If  he  finds  that  a  decision  is  arrived  at  on 
strict  and  sound  legal  and  judicial  principles,  which  offends  his 
senae  of  right,  he,  often  through  lack  of  comprehension  of  the 
legal  argument,  goes  in  revolt,  not  against  that  particular  opinion, 
but  against  the  whole  system  which  gives  rise  to  judicial  decisions. 
That,  to  the  best  of  my  knowledge  is,  as  briefly  as  I  can  put  it, 
the  state  of  mind  of  the  man  who  is  restive  as  to  the  application 
of  the  law  to  hifi  particular  set  of  interests  or  contentions. 

In  my  judgment,  at  that  point  is  to  be  found  the  basis  for  the 
argument  that  the  student  of  the  law  must,  in  these  days,  have  a 
care  that  he  possesses  a  thorough  comprehension  of  economics, 
and  all  those  principles  of  organized  society  which  history  and 
the  social  sciences  exhibit  in  their  evolution  and  their  applica- 
tion. Curiously  enough,  it  is  exceedingly  difficult  today  to  get 
for  the  great  mass  of  our  stadent  bodies  any  sound  and  thor- 
ough comprehension  of  the  fundamental  principles  of  economics. 
That  was  possible  thirty  years  ago,  perhaps  less.  But  that  great 
braneh  of  knowledge  hsB  now  become  so  divided  into  separafce 
fields, — ^the  money  problem,  the  labor  problem,  the  transportation 
problem,  the  public  utility  problem — ^that  economists  nowadays 
are  very  apt  to  be  specialists  and  unable  or  unwilling  to  give  to 
the  youth  of  high  school  or  college  age  that  clear,  simple  expo- 
sition of  the  fundamental  principles  of  economics  which  is  neces- 
sary to  an  linderstanding  of  the  life  we  live,  and  which  has 
become  an  essential  part  of  the  equipment  of  the  modem  mem* 
ber  of  the  Bar  who  would  be  apprized  of  the  great  body  of  facts 
by  which  we  are  surrounded,  the  feelings,  the  emotions,  the 
ambitions,  that  are  moving  masses  of  men. 

We  speak  of  waste,  physical  waste,  financial  waste.  I  some- 
times wonder  whether  there  is  any  waste  in  the  world  compsi- 
aUe  with  our  intellectual  waste;  whethe^  there  is  anything  to 
compare  with  the  amount  of  tmgamered,  tmintei^reted,  un- 
known knowledge,  tiiat  goes  daily  over  the  dam  of  human  life  and 
human  experience. 

Let  me  give  one  illustration.  We  are  living  at  a  time  when 
there  is  a  very  strong  and  almost  world-wide  revival  of  faith  in 
some  form  of  communism — ^both  communism  as  to  social  rela- 
tions and  communism  as  to  the  possession  of  property.    If  the 


NICHOLAS  KUBRAT   BUTLBB.  1^81 

modern  oommuniflt  weie  asked  to  read  Plato's  ^'  Bepublie/'  and 
find  out  abont  it  all,  he  woxQd  be  surprised.  If  he  were  asked 
to  read  Governor  Bradford's  '^  History/'  and  to  find  what  hap- 
pened at  Plymouth  among  a  people  as  intelligent  and  as  high 
minded  and  as  united  in  sjniit  as  were  ever  together,  he  would 
probably  wonder  why  we  asked  him  to  *give  his  time  to  ancient 
history.  But  the  fact  is,  that  human  experience  has  tried  all 
these  things.  Human  endeavor  has  traveled  on  all  of  these  roads. 
If  we  would  avoid  unceasing  and  exhausting  intellectual  and 
social  waste,  it  behooves  us  that  our  leaders  of  opinion,  those 
who  are  so  instrumental  in  formulating  our  law,  those  who 
guide  us  through  their  interpretation  and  make  their  decisioils, 
those  who  occupy  a  leading  place  in  the  development  and  forma- 
tion of  puUic  opinion,  should  know,  not  merely  guess  at,  but 
know,  what  has  been  done  in  the  world  in  the  way  of  social  and 
economic  experimentation. 

Therefore  I  would  have  the  preliminary  education  of  the 
lawyer  lay  the  greatest  possible  stress  upon  the  fimdamentals  of 
economics  and  upon  the  history  of  social  organization,  social 
endeavor,  social  success,  and  social  failure.  The  material  is  at 
hand  and  abundant. 

Next,  it  goes  without  saying,  does  it  not,  that  in  order  to 
comprehend,  even  dimly,  the  principles  of  law  and  the  methods 
of  critical  thinking  and  ratiocination — ^that  there  must  be  a 
foundation,  an  adequate  disciplined  maturity — a  dtisciplined 
maturity  and  not  merely  maturity?  Men  may  grow  up  aiid 
grow  old  without  discipline  and  vidthout  wisdom.  They  will  be 
assisted  if,  during  this  period  of  maturing,  there  is  an  order^ 
discipline  wisely  directed  toward  a  definite  and  specific  end. 

The  schools  of  medicine  and  the  schools  of  engineering  have 
now  got  to  the  point  they  say  explicitly  what  they  wish  the 
incoming  student  to  have.  You  may  not  be  graduated  from  even 
the  best  of  American  colleges  with  your  Bachelor's  D^ree  and 
walk  into  a  school  of  medicine.  The  very  first  thing  that  tbey 
ask  you  is,  whether,  in  getting  that  d^ree,  you  gained  a  suffi- 
cient knowledge  of  the  sciences  fundamental  to  medicine,  chem- 
istry, physics,  physiology,  so  as  to  enable  you  to  come  and 
profit  by  your  four  years  of  medical  instruction.  The  student 
of  the  best  schools  of  engineering  must  have,  not  merely  a  degree, 


282  PRBLIMINARY   EDUCATION   FOR  LAWYBRS. 

not  merely  so  many  years  spent  in  college  study^  but  it  is  speci- 
fied that  he  must  come  with  so  much  mathematics^  so  much 
physics,  so  much  mechanics,  so  much  something  else,  as  will 
enable  him  to  profit  by  highly  organized  professional  engineer- 
ing instruction.  The  time  has  come>  gentlemen,  for  the  schools 
of  law  to  say  that  they  wish  their  entering  students  to  come 
to  them,  having  pursued,  systematically  and  well,  those  studies 
in  the  field  of  economics  and  history  and  social  science  that 
will  prepare  them  to  understand  the  fundamental  concepts  of  the 
law,  their  development  and  their  application. 

Of  course,  the  moment  a  student  approaches  the  law,  he  begins 
the  study  of  history  from  a  new  angle  and  in  a  new  way.  But  it 
will  not  harm  him  to  have  had  those  larger  and  fuller  and  non- 
legal  views  of  history  that  open  the  mind,  that  inform  him  as  to 
human  experience,  and  that  prepare  it  to  give  a  new  meaning  to 
the  early  stages  in  the  development  of  the  law  of  contracts  and 
torts  and  real  property. 

Where  shall  these  studies  be  had?  Many  of  us  have  followed 
with  interest  your  discussions  and  your  reports,  and  those  held 
and  made  under  your  auspices,  relative  to  this  topic.  I  think, 
without  risk  of  being  misunderstood,  I  may  say  that  there  is  noth- 
ing sacred  about  a  college  education.  There  are  some  persons  who 
go  to  college  who  would  be  distinctly  improved  by  being  kept 
away.  There  are  doubtless  many  others  who  would  gain  marked 
advantage,  for  themselves  and  for  the  society  in  which  they  live, 
'  if  the  opportunity  for  a  college  training  were  open  to  them.  But, 
in  that  connection,  you  must  bear  in  mind  that  the  word 
^^  college ''  no  longer  has  a  definite  or  a  uniform  meaning.  A 
college,  in  the  United  States,  is  almost  anything  which  bears 
•  that  name.  If  it  shall  be  chartered  under  the  general  act  of 
incorporation  in  the  District  of  Columbia,  for  example,  it  quickly 
may  assume  the  form  of  a  public  nuisance. 

When  you  use  the  word  '*  college,''  it  is  important  to  remem- 
ber, 'first,  that  you  are  dealing  with  a  term  which  has  been 
defined  by  law  in  but  very  few  states — ^I  recall  but  two  at  the 
moment — there  may  be  others.  Next,  that  you  are  dealing  with 
an  institution  which,  for  25  years,  has  been  going  through  a  very 
extraordinary  series  of  changes,  and  which  doubtless  will  con- 
tinue to  go  through  similar  changes  for  some  time  to  come, 


NICHOLAB  liUBBAY   BUTLEB.  283 

§ince  we  are  living  in  a  period  of  development  and  change. 
Mere  going  to  college 'is  not  sufficient.  It  ought  to  indicate  dis- 
ciplined maturity.  Perhaps  it  does.  If  it  does,  so  far  so  good. 
But  the  point  is,  has  that  going  to  college  for  a  longer  or  a 
shorter  time  included  a  serious  and  scholarly  study  of  the 
fundamental  pre-l^al  subjects  to  which  I  have  been  making 
reference?    That  is  something  which  will  bear  looking  into. 

One  other  point.  I  have  been  told  that  it  is  objedied  to 
raising  the  standard  of  admission  to  the  legal  profession,  that  this 
would  put  such  admission  beyond  the  reach,  for  financial  reas- 
ons, of  very  many  ambitious  and  mentally  well-equipped  Ameri- 
can youth.   I  am  disposed  to  doubt  it. 

There  has  grown  up  in  this  country,  and  it  is  rapidly  multi- 
plying, an  institution  known  as  the  Junior  College.  That  Junior 
College  will  be  foimd  one  of  these  days  in  pretty  much  every  city 
in  the  union  that  has  fifty  thousand  or  seventy-five  thousand 
inhabitants.  It  is  the  result  of  an  evolution  that  has  been  going 
on  for  forty  years,  and  indicates  one  of  the  most  striking  changes 
in  the  oi^ganization  of  American  education.  Our  old-fashioned 
college  took  a  boy  at  sixteen  or  seventeen,  kept  him  until  he 
was  twenty  or  twenty-one,  and  carried  him  through  a  substan- 
tially uniform  and  prescribed  course  of  study.  As  intellectual 
interests  multiplied,  as  the  program  became  overcrowded,  as 
the  choice  of  studies  was  introduced,  all  that  was  changed, 
until  now,  the  number  of  youths  in  a  given  college  and  in  a 
given  year  who  pursue  exactly  the  same  program  of  instruction 
is  very  small,  indeed. 

The  consequence  is  that  a  situation  developed  which  was  not 
very  fortunate,  because  we  found  we  were  destroying  the  cotnmon 
body  of  knowledge  which  holds  men  together.  The  real  argument 
for  prescribed  studies  to  youth  of  college  age  is  not  alone  such 
value  as  they  may  have  for  discipline  and  information,  but  it  lies 
in  the  fact  that  it  is  highly  important,  especially  in  a  self -govern- 
ing society,  that  men  and  women  should  be  united  by  a  common 
body  of  knowledge,  before  their  special  interests  begin  to  diverge 
and  move  apart. 

In  the  endeavor  to  correct  an  unsatisfactory  situation,  the  pre- 
scribed and  ordered  studies  were  put  into  the  first  two  years  of 
the  old  four-year  college  course.    Then  it  began  to  be  found  that 


264:  PBBLIMINABY  HDUOATION   FOB  LAWYEBS. 

many  communities  could  afford  to  maintain  that  type  of  instruc- 
tion in  connection  with  their  high  schools^  and  the  Junior  College 
began  to  grow  up  all  over  the  land.  There  are  hundreds  of  such 
institutions  now^  very  soon  there  will  be  thousands.  Their  devel- 
opment is  certain  to  follow  the  development  of  the  high  schools 
themselves,  which  have  multiplied  many  times  in  the  last  forty 
years.  This  kind  of  instruction,  of  which  I  understand  you 
are  in  search,  will  be  found  not  alone  in  the  great  universities 
and  the  endowed  colleges  in  the  East,  North,  South,  and  West, 
but  it  will  be  found  almost  at  the  doorsill  of  the  intending  stu- 
dent of  the  law,  in  the  community  where  is  his  home,  which  can 
provide  enough  students  year  by  year  to  justify  the  taxpayer  in 
maintaining  this  type  of  institution. 

So  that,  in  dealing,  gentlemen,  with  the  preliminary  educa- 
tion of  the  law  student,  you  are  dealing  not  alone  (and  this 
I  am  especially  anxious  to  make  clear)  with  something  which 
affects  the  Bar  and  your  profession,  but  you  are  dealing  with  a 
large  and  far-reaching  public  interest.  You  are  dealing  with 
variable  quantities,  you  are  dealing  with  a  complicated  situa- 
tion, made  so  by  the  student  and  the  variety  of  our  country,  its 
population,  its  needs,  its  economic  situation.  And  it  must  be 
dealt  with,  if  it  ip  to  be  dealt  with  constructively  and  helpfully, 
not  only  in  a  spirit  of  understanding,  but  of  sympathy ;  not  only 
from  the  viewpoint  of  professional  opportunity,  but  of  public 
service.  And  when  that  shall  be  accomplished,  and  when  the 
student  shall  be  launched  upon  the  study  of  law  as  law  with  a  dis- 
ciplined maturity  such  as  I  have  described,  with  a  body  of  knowl- 
edge in  these  historical  and  economic  fields  such  as  I  have  tried 
briefly  to  summarize,  you  will  have  carried  very  far  forward  the 
standards  of  usefulness  of  your  profession,  not  only  as  a  profession 
devoted  to  high  ideals  and  public  service,  but  as  a  profession 
which  is  one  of  the  foundation  stones  of  the  social  order  of  among 
men  in  the  modern,  self-governing  state. 


REPORT 

.      or  THS 

COMMITTEE  ON  PROFESSIONAL  ETHICS  AND  GRIEVANCES. 

To  the  American  Bar  Association : 

Your  Committee  on  Professional  Ethica  and  Grievances  re- 
spectfully submits  its  annual  report. 

The  Committee  has  observed  and  is  glad  to  call  attention  to 
the  frequency  with  which  the  courts  now  refer  to  and  quote  the 
Canons  of  Ethics  adopted  by  the  Association.  The  Committee 
is  informed  that  North  Carolina  has  recently  been  added  to  the 
list  of  the  States  whose  courts  of  last  resort  have  thus,  approved 
the  work  of  the  Association. 

The  following  matters  have  come  before  the  Committee  for 
attention  during  the  past  year : 

1.  Complaints  against  members  of  the  Bar  in  different  states. 
As  this  Committee  has  no  jurisdiction  to  act  on  such  complaints 
they  have  been  transmitteil  to  the  appropriate  committees  of  the 
particular  state  or  local  bar  associations  having  jurisdiction. 

2.  Complaints  against  members  of  the  Association.  The  com- 
plaints received  of  this  character  came  late  in  the  year.  As  the 
Committee  has  no  present  authority  to  make  an  investigation  of 
such  complaints,  action  on  them  was  deferred  until  it  is  known 
whether  the  Association  adopts  the  amendments  hereinafter 
recommended  giving  the  Committee  such  authority. 

3.  The  solicitation  of  business  by  so-called  *'  patent  attorneys.'* 
Many  complaints  were  received  regarding  the  solicitation  of 
patent  business  by  laymen  calling  themselves  patent  attorneys. 
Investigation  showed  that  the  rules  of  the  Patent  Office  require 
that  all  persons  representing  applicants^  whether  lawyers  or  lay- 
men, be  registered  in  the  Patent  Office  at  ^'  attorneys,''  the  wot  A 
supposedly  being  used  to  designate  attorneys-in-fact.  Having 
registered  themselves  as  such  patent  attorneys,  laymen  have  made 
use  of  the  term  in  advertising  for  business.  This  advertising  has 
been  carried  to  feuch  an  extent  that  the  majority  of  all  patent 
applications  are  made  through  these  laymen  patent  attorneys. 
The  use  of  this  term  in  such  advertising  has  misled  the  public — 
as  it  apparently  was  intended  it  should — into  believing  that  it 
was  dealing  with  attorneys  at  law.  As  a  result  abuses  have  arisen 
and  our  profession  has  received  the  blame  for  the  misconduct  of 
some  of  these  so-called  attorneys. 

(286) 


286  BEPORT  OF   GOMMITTBB  ON 

Under  a  recently  enacted  statute,  the  Commissioner  of  Patents 
is  given  authority  to  formulate  and  prescribe  rules  for  the  r^^nla- 
tion  of  the  conduct  of  these  registered  patent  attorneys.  Your 
Committee  therefore  recommends  that  the  Association  request 
the  Commissioner  of  Patents  to  include  in  such  regulations  as 
may  be  adopted,  a  rule  prohibiting  the  solicitation  of  business 
by  these  registered  patent  attorneys  so  long  as  they  are  designated 
as  and  allowed  to  describe  themselves  as  attorneys  or  patent 
attorneys. 

4.  Tne  attention  of  the  Committee  has  also  been  called  to  the 
fact  that  the  rules  of  the  office  of  the  Commissioner  of  Internal 
Revenue  now  require  that  all  persons,  whether  lawyers  or  laymen, 
prosecuting  claims  before  that  office,  register  as  attorneys  for  the 
claimant,  and  that  some  of  the  laymen  so  registered  are  now  desig- 
nating and  advertising  themselves  as  ''  Income  Tax  Attorneys," 
with  the  consequent  promise  of  the  same  abuses  arising  from  this 
misuse  of  the  word  a£  in  the  case  of  patent  attorneys. 

Your  Committee  therefore  recommends  that  a  Special  Com- 
mittee be  appointed  by  the  President  to  investigate  and  determine 
by  what  right,  if  any,  laymen  who  are  registered  as  attorneys-in- 
fact  in  the  Patent  Office  and  in  the  Office  of  the  Commissioner  of 
Internal  Revenue  use  the  words  "  patent  attorney  "  or  "  income 
tax  attorney  '*  in  designating  their  work,  and  to  recommend  to  the 
Association  such  action  as  may  bring  about  the  discontinuance  of 
these  misleading  designations. 

6.  During  the  year  the  Executive  Committee  appointed  a 
Special  Committee  to  prepare  an  amendment  to  the  By-Laws 
relative  to  the  duty  and  authority  of  this  Committee.  The  Spe- 
cial Committee  drafted  an  amendment  to  By-Law  VII  of  the  By- 
Laws  which  amendment  has  been  approved  by  the  Executive 
Committee  and  published  in  the  Joubnal  in  accordance  with 
Article  V  of  the  Constitution..  The  Committee  therefore  recom- 
mends that  By-Law  VII  of  the  By-Laws  be  amended  by  substi- 
tuting for  the  last  paragraph  thereof,  the  following: 

The  Committee  on  PlrofeflBional  Ethics  and  Grievanoes  shall: 

(1)  Assist  state  and  local  bar  associations  in  all  matters  ooneemiDg 
their  activities  in  respect  to  the  ethics  of  the  profession,  collect  ana 
communicate  to  the  Association  information  concemiiuc  such  activities 
and,  from  time  to  time,  make  recommendations  on  the  subject  to  the 
Aflwdation. 

(2)  Be  authorizedi  in  its  discretion,  to  express  its  opinion  conoeminff 
proper  .prof essiona]  conduct  and  particularly  concerning  the  application 
of  the  CanoDS  of  Ethics  thereto,  when  consulted  by  officers  or  committees 
of  state  or  local  bar  associations.  Such  expression  of  opinion  shall  only 
be  made  after  a  consideration  thereof  at  a  meeting  oi  the  Committee 
and.  approval  by  at  least  a  majority  of  the  Committee. 

(3)  Be  authorized  to  hear,  in  meeting  of  the  Committee,  upon  its  own 
motion,  or  upon  complaint  preferred,  charges  of  professional  misconduct 
against  any  member  of  this  Association.    As  a  result  of  such  hearing  it 


PBOFBSSIONAL  ETHICS   AND  GRIEVANCES.  287 

may  recommend  to  the  Executive  Committee  the  forfeiture  of  the  right 
to  membership  of  any  such  member.  All  such  recommendations  shall  be 
accompanied  By  a  transcript  of  the  evidence  and  shall  only  be  made  after 
the  accused  member  has  been  given  notice  of  the  nature  of  the  com- 
plaint and  after  a  reasonable  opportunity  has  been  accorded  him  or  her 
to  submit  evidence  and  argument  in  defense. 

(4)  Forfeiture  of  the  membership  of  any  member  as  hereinbefcHre 
provided  shall  become  effective  when  approved  by  a  majority  of  all  of 
the  members  of  the  Executive  Committee  and  all  interest  in  the 
property  of  the  Association  of  persons  whose  membership  is  so  forfeited 
shall  ipso  facto  vest  in  the  Association.  The  membership  in  the  Asso- 
ciation, and  all  interest  in  the  property  of  the  Association  of  a  member 
shall  ipso  facto  cease  upon  his  disbarment,  or  a  final  judgment  of 
conviction  of  a  felony. 

(5)  -Whenever  specific  chaiiges  of  unprofessional  conduct  shall  be  made 
against  any  member  of  the  Bar,  whether  or  not  a  member  of  this  Asso- 
ciation, and  the  Chairman  of  the  Committee  on  Professional  Ethics  and 
Grievances  is  of  the  opinion  that  the  case  is  such  as  requires  investigation 
or  prosecution  in  the  coiuls,  the  same  shall  be  referred  by  the  Chairman 
to  the  appropriate  state  or  local  bar  association  where  sudi  attomev 
resides  and  it  shall  be  the  duty  of  the  Chairman,  in  co-operation  with 
the  local  Vice-President  of  this  Association  for  the  State  where  such 
attorney  resides,  to  uiige  the  appropriate  officers  or  committees  of  state 
or  local  bar  associations  to  institute  inquiry  into  the  merits  of  the 
complaint,  and  to  take  such  action  thereon  as  may  be  appropriate,  with 
a  view  to  the  vindication  of  lawyers  unjustly  accused,  and  the  discipline 
by  the  appropriate  tribunal  of  lawyers  guilty  of  unprofessional  conduct. 

(6)  The  Committee,  with  the  approval  of  the  £h[ecutive  Commitee, 
shall  formulate  rules  not  inconsistent  with  this  by-law  to  give  effect  to 
the  foregoing  provisions,  which  rules  shall  be  published  in  the  annual 
reports  of  the  Association. 

Thomas  Francis  Howe,  Chairman^ 
James  D.  Shearer, 
Charles  Thaddeus  Terry, 
Morris  A.  Soper, 
Henry  TT.  Sims. 


10 


REPORT 

OF  THB 

COMMITTEE  ON  COMMERCE,  TRADE   AND  COMMERCIAL 

LAW. 

To  the  American  Bar  Association: 

Your  Committee  on  Commerce,  Trade  and  Commercial  Law, 
reports  as  follows : 

I. 

SuMMABY  OP  Recommendations. 

Your  committee  recommends : 

First:  The  adoption  of  a  resolution  by  the  American  Bar 
Association  reiterating  and  reaffirming  resolutions  numbered 
First,  Second,  Third,  Fourth,  Fifth,  Sixth,  Twelfth  and  Seven- 
teenth, of  the  report  of  your  Committee  at  the  Cincinnati,  Ohio, 
meeting,  August  31  to  September  2, 1921,  in  1921  Report  Ameri- 
can Bar  Association,  Vol.  XLVI,  pp.  309-10-11  and  312. 

Second:  That  a  resolution  be  adopted  urging  the  National 
Conference  of  Commissioners  on  Uniform  State  Laws  to  prepare 
such  amendments  as  are  needed  in  the  Uniform  Sales  and  Uni- 
form Warehouse  Receipts  Acts,  to  give  the  latter  full  negotiability 
accorded  to  bills  of  lading  under  the  Uniform  Bills  of  Lading 
Act,  and  recommend  the  same  for  approval  by  the  American  Bar 
Association,  and  adoption  by  the  states  which  have  enacted  the 
Uniform  Sales  Act  and  the  Uniform  Warehouse  Receipts  Act. 

Third:  That  a  resolution  be  adopted  giving  your  committee 
further  time  for  the  consideration  of  the  uniformity  of  the 
Law  Merchant  in  North  and  South  America. 

Fourth:  That  a  resolution  be  adopted  that  yoifr  committee 
give  further  consideration  to  the  subject  of  a  general  system  of 
United  States  Commercial  Courts,  along  the  lines  of  the  English 
Commercial  Courts. 

Fifth:  That  a  resolution  be  adopted  giving  your  committee 
further  time  to  submit  a  draft  of  an  act  to  codify  the  law  of 
Common  Carriers  in  Interstate  and  Foreign  Commerce. 

Sixth:  That  a  resolution  be  adopted  disapproving  a  Mer- 
chandise Marks  Act  as  a  part  of  an  act  dealing  with  trade  marks 
and  copyrights;  and  that  your  committee  be  given  further  time 
to  prepare  a  draft  of  a  Merchandise  Marks  Act. 

(288) 


COMMEBGE^   TRADB  AND  COMMERCIAL  LAW.  389 

Seventh:  That  a  resolution  be  adopted  approving  the  United 
States  Sales  Act-    (Appendix  A.) 

Eighth:  That  a  resolution  be  adopted  in  the  matter  of  Pro- 
fessional Ethics  and  Trade  Associations ;  that  the  personal  rela- 
tionship between  attorney  and  client  should  be  preserved;  that 
the  services  of  a  lawyer  should  not  be  treated  as  merchandise 
to  be  trafficked  in;  that  there  should  not  be  solicitation  of  the 
professional  employment,  either  by  indirection  or  direction; 
that  there  should  not  be  a  division  of  fees  by  a  lawyer  with  a 
layman ;  that  the  exploitation  of  the  office  of  the  lawyer  for  the 
profit  of  another,  is  an  abuse  of  its  function,  and  that  it  is  in  the 
public  interest  that  the  lawyer  must  be  free  from  divided  alleg- 
iance and  inconsistent  obligations.  For  these  reasons,  therefore, 
this  Association  disapproves  of  the  organization  of  adjustment 
bureaus  wherein  the  lawyers*  services  are  furnished  by  the  Asso- 
ciation to  its  members,  and,  whether  there  is  a  division  of  fees 
with  such  an  association  or  not,  where  the  direct  relationship  of 
attorney  and  client  does  not  exist. 

Ninth:  That  a  resolution  be  adopted  approving  Senate  Bill 
77,  providing  for  the  payment  of  interest  on  judgments  rendered 
against  the  United  States  for  money  due  on  public  work. 

Tenth :  That  a  resolution  be  adopted  referring  to  the  National 
Conference  of  Commissioners  on  Uniform  State  Laws,  the  bill 
herewith  submitted  by  your  committee,  as  to  a  Uniform  State 
Arbitration  Act.     (Appendix  C.) 

Eleventh:  That  a  resolution  be  adopted  approving  form  of 
treaty  to  be  negotiated  with  foreign  countries  for  making  effective 
international  arbitration  in  commercial  disputes  and  contro- 
versies, herewith  submitted.    (Appendix  D.) 

Twelfth:  That  a  resolution  be  adopted  approving  suggested 
provisions  of  a  bill  for  a  United  Stetes  Act  for  the  arbitration 
of  actual  commercial  controversies  and  disputes,  herewith  sub- 
mitted.   (Appendix  B.) 

Thirteenth:  That  a  resolution  be  adopted,  approving  the 
amendment  of  Section  22a  of  the  United  States  Bankrupt  Act, 
by  adding  at  the  end  of  said  section  the  following : 

And  after  any  general  reference  the  referee  shall,  unless  the  judge 
orders  otherwise,  have  jurisdiction  in  plenary  suits  under  Sections  60b; 
67e;  and  70e  for  the  recovery  of  property  transferred  by  way  of  prefer- 
ence and  property  fraudulently  transiferred. 

11. 

(a)  Your  committee,  pursuant  to  the  invitational  letter  and 
Agenda,  held  a  three  days'  public  hearing  in  the  assembly  room 
of  the  Merchants*  Association,  Woolworth  Building,  233  Broad- 
way, N"ew  York  City,  March  29-31,  inclusive,  1922,  at  which 


290  REPORT  OF   COMMITTEE  ON 

more  than  twenty-five  representatives  of  variouB  interests,  indus- 
tries and  associations  appeared  on  behalf  of  the  respective 
interests  represented  by  them,  and  vigorously  discussed  the 
questions  of  interest  to  them  and  constructively  criticized  the 
proposed  drafts  of  laws  being  considered  by  your  committee. 

(b)  Tour  committee,  pursuant  to  resolutions  Fifteenth  and 
Sixteenth  in  "  Summary  of  Becommendations  "  of  1921  report, 
has  caused  to  be  introduced,  the  bill  to  amend  the  National 
Bankruptcy  Act,  the  same  being  introduced  by  Senator  Selden  P. 
Spencer,  and  being  numbered  2921 ;  and  the  Pomerene  Bills  of 
Lading  Act,  bill  being  introduced  by  Senator  Atlee  Pomerene, 
and  being  numbered  2530.  The  bills  are  now  pending  and 
satisfactory  hearings  have  been  had  on  them. 

(c)  Your  committee  considered,  pursuant  to  directions  of 
Executive  Committee,  Senate  Bill  77,  and  reports  in  favor  of 
same  by  resolution  Ninth  hereof. 

(d)  Bespectin^  Becommendation  Sixth,  of  the  Summary  of 
Becommendations  of  1921  Beport,  your  committee  has  had  under 
consideration  for  some  time,  the  important  subject  of  drafting  an 
act  to  codify  the  Law  of  Common  Carriers  in  Interstate  and 
Foreign  Commerce.  The  work  is  of  such  magnitude  as  to  require 
not  only  the  patient  and  prolonged  consideration  of  the  com- 
mittee itself,  but  the  assistance  of  an  expert  draftsman.  The 
committee  has  called  to  its  assistance  at  different  times.  Professor 
Felix  Frankfurter,  but  the  work  has  from  time  to  time  been 
interfered  with  and  great  progress  has  not  been  made  in  the 
process  of  codification,  and  your  committee  recommends  that 
further  time  be  given  for  the  submission  of  such  an  act  to  the 
Association. 

(e)  Beporting  on  the  Eighteenth  Becommendation,  1921  Be- 
port, that  the  conunittee  prepare  and  submit  a  Merchandise 
Mark  Act  as  to  Interstate  and  Foreign  Commerce.  The  Section 
of  Patent,  Trade  Marks  and  Copyright  Law  has  prepared  a  draft 
of  the  Trade  Mark  Act  which  embodies  a  parap^raph  covering 
the  question  of  false  descriptions  and  representations  in  the 
sale  of  merchandise,  and  particularly  embodies  the  idea  of  this 
committee  as  to  the  kind  of  a  Merchandise  Marks  Act  which 
Congress  ought  to  pass.  Your  committee,  however,  is  of  the 
opinion  that  a  Merchandise  Marks  Act  should  not  be  made  a 
part  of  an  act  that  deals  with  trade  marks;  that  the  subject  is 
distinct  from  the  subject  of  trade  marks,  and  your  committee 
recommends  to  this  Association  the  adoption  of  a  Merchandise 
Marks  Act  in  substance  as  referred  to  in  paragraph  No.  30  of  the 
committee  draft  of  Trade  Mark  Act  of  the  Section  of  Patent, 
Trade  Mark  and  Copyright  Law  or  this  Association,  to-wit : 

That  any  person  who  ahall  affix,  apply  or  annex,  or  use  in  connection 
with  any  article  or  articles  of  merdiandise,  or  any  container  or  containers 


GOMMEROB^  TEADB  AND  OOMICBRGIAL  LAW.  291 

of  the  same,  a  false  designation  or  origin,  or  any  false  description  or 
representation  including  words  or  other  symbols,  tending  falsely  to 
identify  the  origin  of  the  merchandise,  or  falsely  to  describe  or  represent 
the  same,  and  shall  cause  such  merchandise  to  enter  into  interstate  or 
foreign  commerce,  or  commerce  with  Indian  tribes,  and  any  person  who 
shall  knowingly  cause  or  procure  the  same  to  be  transported  in  interstate 
or  foreign  commerce  or  commerce  with  Indian  tribes,  or  shall  knowingly 
dehver  the  same  to  any  carrier  to  be  so  transported,  shall  be  liable  to  an 
action  at  law  for  damages,  and  to  a  suit  in  equity  for  an  injunction,  at 
the  suit  of  any  person,  firm  or  corporation  doing  businesB  in  the  locality 
falsely  indicated  as  that  of  origin,  or  in  the  region  in  which  said  locality 
is  situated,  or  of  any  person,  fijrm  or  corporation  who  is  or  is  likely  to  be 
damaged  by  the  use  of  any  false  description  or  any  representation,  or  at 
the  suit  of  any  association  of  such  persons,  firms  or  corporations,  and 
any  article  marked  or  labeled  in  contravention  of  the  provisions  of  this 
section,  diidl  not  be  imported  into  the  United  States,  or  admitted  to 
entiy  at  any  custom  house  of  the  United  States. 

(f )  With  respect  to  Becommendatioxifl  Tenth,  Eleventh,  Nine- 
teenth and  Twenty-Third,  1921  Beport.  No  suggestions  or 
information  by  persons  or  associations  interested  were  presented 
to  your  committee,  and  your  committee  makes  no  recommenda- 
tion thereon. 

(g)  Beporting  as  to  the  Twenty-Second  Becommendation  of 
the  Summary  of  Becommendations  1921,  Beport.  Your  com- 
mittee reports  that  there  was  a  ver^  extended  discussion  on  this 
topic,  and  the  public  hearing  occupied  more  time  in  its  presentar 
tion  by  those  who  were  in  favor  of  it  and  by  those  who  were 
opposed  to  it  than  any  other  matter  before  the  committee. 

One  of  the  very  active  representatives  of  the  National  Credit 
Men's  Association,  who  was  familiar  with  the  operation  of  credit 
bureaus  throughout  the  United  States^  was  very  insistent  that 
every  state  should  permit  corporations  to  be  organized  so  as  to  do 
what  he  called  *^  Adjustment  Bureau  Work.''  In  his  argument 
he  presented  many  reasons  why  it  should  be  done.  He  was 
encouraged  in  its  presentation  by  a  member  of  a  very  active 
collection  law  firm  in  one  of  the  principal  esjstem  cities,  who 
spoke  along  the  economical  lines.  Neitiier  of  them,  however, 
could  meet  the  contention  that  by  the  organization  of  such  cor- 
porations, and  the  handling  of  the  legal  business  in  the  manner 
provided  by  them,  it  would  do  away  absolutely  with  that  close 
and  personal  relationship  that  exists  between  a  lawyer  and  his 
client,  if  the  whole  matter  was  simply  a  matter  of  barter  and 
sale,  and  where  a  creditor  would  have  to  do  what  he  believed  was 
not  for  his  best  interests,  or  be  thrown  out  of  the  association  of 
which  he  was  a  member. 

They  recognized  the  value  of  high,  ethical  principles  and 
said  they  should  be  maintained. 

Equally  and  forcibly  opposed  to  their  argument  were  certain 
lawyers  and  representatives  of  the  New  York  County  Lawyers' 
Association. 


292  REPORT  OF   COMMITTEE  ON 

We  had  before  us  the  report  of  the  Committee  on  Unlawful 
Practice  of  the  Law,  of  the  New  York  County  Lawyers'  Asso- 
ciation for  the  year  1922,  the  announcement  of  the  opinion  of 
the  same  association  by  the  Committee  on  Professional  Ethics 
for  the  year  1921,  the  acts  which  had  been  introduced  in  the 
Senate  and  in  the  Assembly  of  the  New  York  Legislature,  endeav- 
oring to  modify  the  laws  of  New  York  so  as  to  permit  cor- 
porations to  be  organized  for  the  operaition  of  adjustment 
bureaus,  which  acts  were  defeated  in  the  legislative  committees. 
After  due  consideration  of  all  these  matters,  your  committee 
unanimously  endorsed  the  following  resolution  and  the  recom- 
mendation to  be  made  to  the  Association,  to-wit : 

That  a  resolution  be  adopted  in  the  matter  of  Professional 
Ethics  and  Trade  Associations;  that  the  personal  relationship 
between  attorney  and  client  should  be  preserved ;  that  the  services 
of  a  lawyer  should  not  be  treated  as  merchandise,  to  be  trafficked 
in;  that  there  should  not  be  solicitation  of  the  professional 
employment,  either  by  indirection  or  direction ;  that  there  should 
not  be  a  division  of  fees  by  a  lawyer  with  a  layman;  that  the 
exploitation  of  the  office  of  the  lawyer  for  the  profit  of  another, 
is  an  abuse  of  its  functions;  and  that  it  is  in  the  public  interest 
that  the  lawyer  must  be  free  from  divided  allegiance  and  in- 
consistent obligations.  For  these  reasons,  this  Association,  there- 
fore, disapproves  of  the  organization  of  adjustment  bureaus 
wherein  the  lawyer's  services  are  furnished  by  the  association 
to  its  members,  and,  whether  there  is  a  division  of  fees  with  such 
an  association  or  not,  where  the  direct  relationship  of  attorney 
and  client  does  not  exist. 

(h)  Beporting  on  the  Seventh  Becommendation  of  1921  Be- 
port,  your  committee  has  carefully  considered  the  draft  of  a  bill 
relating  to  Sales  and  Contracts  to  Sell  in  Interstate  and  Foreign 
Commerce,  has  invited  suggestions,  and  has  received  assistance 
and  advice  from  Professor  Samuel  Williston,  employed  as  expert 
draftsman,  and  who  sat  with  the  committee  at  its  hearing. 

(i)  The  committee  submits  a  draft  of  a  bill  as  revised  and 
amended,  and  moves  that  a  resolution  be  adopted  approving  the 
bill  as  now  submitted  by  the  committee.  (See  Appendix  A,  for 
draft.) 

(j)  Bespecting  the  Twelfth  Becommendation  of  1921  Beport, 
your  committee  is  still  of  the  opinion  that  the  changes  suggested 
are  desirable,  and  recommends  that  a  resolution  be  adopted, 
urging  the  National  Conference  of  Commissioners  on  Uniform 
State  Laws  to  prepare  such  amendments  as  are  needed  to  accom- 
plish the  desired  result  and  recommends  the  same  for  approval 
by  the  American  Bar  Association,  and  adoption  by  the  states 
which  have  enacted  the  Uniform  Sales  Act  and  the  Uniform 
Warehouse  Beceipts  Act. 


GOMMEBOE^   TRADB  AND  COKKERCIAL  LAW.  293 

(k)  Eeporting  on  the  Twentieth  Recommendation  of  the  1921 
Report,  your  committee  gave  further  consideration  to  the  subject 
of  the  uniformity  of  the  law  merchant'  in  North  and  South 
America,  and  gathered  some  additional  information  of  con- 
siderable vdlue.  The  committee  suggests  that  the  subject  have 
further  consideration. 

(1)  Respecting  the  Twenty-First  Recommendation  of  the  1921 
Report.  Owing  to  the  number  of  matters  demanding  attention, 
the  committee  was  not  able  this  year  to  give  much  consideration 
to  a  general  system  of  United  States  Commercial  Courts,  along 
the  lines  of  the  English  Commercial  Courts.  The  matter  is 
important  and  should  be  continued  for  further  consideration. 

(m)  Reporting  on  the  Eighth  and  Fourteenth  Recommenda- 
tions of  the  1921  Report,  your  committee  submits  that,  at  its 
annual  meeting  held  in  St.  Louie,  Missouri,  beginning  August 
26,  1920  (Vol.  XLV,  Reports  of  the  American  Bar  Association, 
p.  75),  the  Association,  on  motion  of  Mr.  Boston,  adopted  a 
resolution  that  the  Committee  on  Commerce,  Trade  and  Com- 
mercial Law  be  requested  to  consider  and  report  at  the  next 
annual  meeting  of  the  Association  upon  the  further  extension  of 
the  principle  of  commercial  arbitration.  Pursuant  to  this  reso- 
lution, the  committee  submitted  at  the  meeting  of  the  Association 
at  Cincinnati,  Ohio,  beginning  August  31,  1921,  in  its  report 
(Vol.  XLVI,  Reports  of  the  American  Bar  Association,  p.  309), 
a  draft  of  a  Ulniform  State  Arbitration  Act  and  a  draft  of  a 
Federal  Act,  both  being  modeled  generally  and  substantially 
upon  the  N"ew  York  Arbitration  Law,  which  has  been  held  to  be 
constitutional  in  matter  of  Berkovitz,  230  N.  Y.,  261.  The 
Arbitration  Act  of  New  York  was  prepared  by  committees  of 
the  New  York  State  Bar  Association,  in  cooperation  with  the 
Chamber  of  Commerce  of  the  State  of  New  York,  and  was  in 
effect  the  carrying  forward  of  the  recommendations  of  the 
National  Conference  of  Bar  Associations  held  at  Cleveland  in 
the  year  1918,  in  which  the  Associations  forming  the  conference 
were  urged  to  extend  the  principle  of  commercial  arbitration. 
The  New  York  statute  not  only  removes  the  anachronism  in  the 
law  of  nearly  three  centuries'  standing,  namely,  that  agreements 
to  arbitrate  are  revocable  at  the  pleasure  of  either  party,  but 
also  provides  a  speedy  and  effective  method  for  performance  of 
the  arbitration  agreement.  The  testimony  received  by  your 
committee  at  the  public  sessions  in  New  York,  March  29,  30,  and 
31,  1922,  confirms  the  testimony  received  by  the  committee  in 
1921,  namely,  that  there  is  a  great  satisfaction  on  the  part  of 
business  men  with  the  principles  and  procedure  of  the  New  York 
Law  and  that  it  is  deeired  that  these  principles  should  be  made 
effective  in  interstate  commerce,  intrastate  commerce  and  foreign 
commerce.    During  the  year  Secretary  of  Commerce,  Hoover, 


294  REPOBT  OF   COHMITTBE  ON 

requested  permisaion  to  introduce  the  proposed  Federal  Arbitra- 
tion Statute  in  Congress.  Copies  of  the  draft  of  the  federal 
statute  were  furnished*  to  him,  and  your  committee  has  had  the 
benefit  of  his  advice^  as  well  as  that  of  his  assistant^  Mr.  James  B. 
Stafford,  and  the  solicitor  of  his  department,  Mr.  William  E, 
Lamb.  At  the  public  hearings  held  by  the  committee,  various 
suggestions  for  the  improvement  of  the  statutes  were  made. 
Your  committee  acknowledges  specially  the  assistance  of  Mr. 
Charles  L.  Bernheimer,  Chairman  of  the  Committee  on  Arbitra- 
tion of  the  New  York  State  Chamber  of  Commerce.  Your 
committee  went  over  these  suggestions  in  executive  session  very 
carefully  and  had  the  assistance  of  Professor  Samuel  WiUiston 
in  considering  them.  The  result  is  a  very  much  improved  draft 
of  both  the  federal  statute  and  the  proposed  uniform  state  statute, 
which  are  now  submitted  as  a  part  of  this  report,  marked  "  Ap- 
pendix B  ^'  and  "  Appendix  C.*' 

It  is  highly  desirable  that  the  federal  statute  and  the  uniform 
state  statute  should  dovetail  and  fit  each  with  the  other.  The 
uniform  state  statute  has  received  the  consideration  of  the  Com- 
missioners on  Uniform  State  Laws,  ^ho  appointed  a  special 
committee  to  deal  with  the  subject,  of  which  Mr.  Alexander  H. 
Bobbins  was  chairman.  Owing  to  the  untimely  death  of  Mr. 
Bobbins  he  was  unable  to  complete  his  work  upon  this  draft  and 
to  give  the  committee  the  benefit  of  his  suggestions  and  criti- 
cisms. His  successor,  Mr.  James  H.  Harkless,  of  Kansas  City, 
Missouri,  has  been  in  correspondence  with  your  committee,  and 
his  tentative  draft  of  a  statute,  while  differing  in  certain  respects, 
is  in  the  same  general  direction  as  that  contained  in  the  drafts 
here  submitted.  Because  of  the  constitutional  questions  passed 
upon  in  the  matter  of  Berkovitz,  and  the  general  success  to 
which  the  procedure  in  New  York  has  attained,  the  committee 
has  adhered  very  closely  to  the  New  York  statute,  modifying  it 
only  in  very  slight  respects.  It  believed  that  this  statute  in  the 
present  form  will  have  the  approval  of  the  Secretary  of  Com- 
merce and  of  the  appropriate  committees  in  both  Houses  of 
Congress,  and  that  the  state  statute,  following  the  same  lines, 
will,  if  approved  by  the  Association,  be  adopted  by  the  Legis- 
latures of  the  respective  states.  A  bill,  following  the  lines  of  the 
committee's  draft  was  introduced  in  the  New  Jersey  legislature 
at  the  session  of  1922,  and  passed  the  Assembly,  but  reached  the 
Senate  too  late  to  be  passed  by  that  body. 

At  the  request  of  the  Committee  on  Arbitration,  of  the  New 
York  State  Chamber  of  Commerce,  a  member  of  your  committee 
and  counsel  for  that  chamber,  drew  a  form  of  treaty  to  be  negoti- 
ated with  foreign  countries  for  the  purpose  of  making  effective 
international  commercial  arbitration  agreements.  This  treaty 
was  submitted  to  Secretary  of  Commerce  Hoover.    The  originju 


/ 

COMMERCE^   TRADE  AND  COMMERCIAL  LAW.  295 

draft  has  been  very  much  revised  by  your  committee,  and  is 
submitted  herewith  for  the  approval  of  the  Association.  ■  (Ap- 
pendix D.)  . 

In  the  opinion  of  your  committee,  the  adoption  of  the  inter- 
national treaty,  the  federal  statute  and  the  uniform  state  statute 
will  put  the  United  States  in  the  forefront  in  this  procedural 
reform.  It  will  raise  the  standards  of  commercial  ethics.  It  will 
reduce  litigation.  It  will  enable  business  men  to  settle  their 
disputes  expeditiously  and  economically,  and  will  reduce  the 
congestion  in  thQ  federal  and  state  courts.  In  pressing  forward 
this  improvement  in  the  law,  the  Association  will  align  itself  with 
the  best  economic  and  commercial  thought  of  the  country  and 
will  do  much  to  overcome  the  criticism  of  the  "  law^s  delays.'' 

Your  committee  also  considered  a  motion  favoring  the  amend- 
ment of  Section  22a  of  the  XT.  S.  Bankrupt  Act  by  adding  words  at 
the  end  of  said  section  giving  referees  in  bankruptcy  power  in 
certain  cases  to  hear  suits  to  recover  preferences  and  property 
fraudulently  conveyed  and  unanimously  voted : 

That  a  resolution  be  adopted  approving  the  amendment  of 
Section  22a  of  the  United  States  Bankrupt  Act,  by  adding  at  the 
end  of  said  Section  the  following: 

And  after  any  general  reference  the  referee  shall,  ualeas  the  judge 
orders  otherwise,  have  jurisdiction  in  plenary  suits  under  Sections  0Ob ; 
67e ;  and  70e  for  the  recovery  of  property  transferred  by  way  of  prefer- 
ence and  property  fraudulently  tranmerred. 

The  length  of  this  report  is  occasioned  by  the  number  of 
subjects  brought  before  your  committee  for  its  consideration. 

Bespectf  ully  submitted, 

W.  H.  H.  Piatt,  Chairman, 
JuLTDS  Henry  Cohen, 
HoLLis  E.  Bailet, 
Howard  H.  Baldridge, 
Provinob  M.  Poque, 
Dated  June  1, 1922.  Committee. 


296  REPORT  OF   COMMITTEE  ON 


APPENDIX  A. 

SECOND  DRAFT  OF  A  BILL. 

Relating  to  Sales  and  Contracts  to  Sell  in  Interstate 

AND  Foreign  Commerce. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  a  sale  or  contract 
to  aell  shall  be  governed  by  this  act 

(a)  If  made  in  the  District  of  Columbia;  or 

(b)  If  such  sale  or  contract  to  sell  includes  as  one  of  its  expressed  or 
implied  terms  an  agreement  that  the  goods  shall  be  transportea,  whether 
at  the  seller's  own  expense  or  not  and  whether  the  property  in  the  goods 
passes  at  or  before  the  time  of  shipment  or  not,  from  a  foreign  country 
to  one  of  the  states  of  the  United  States;  or  from  one  of  the  states  of 
the  United  States  to  or  through  another  state  or  a  foreign  country. 

PART  I. 

Formation  pf  thb  Contract. 

Section  2,^lContracts  to  SeU  and  Sales.l  (I)  A  contract  to  sell  goods 
is  a  contract  whereby  the  seller  agrees  to  transfer  the  property  in  goods 
to  the  buyer  for  a  consideration  called  the  price. 

(2)  A  sale  of  goods  is  an  agreement  whereby  the  seller  transfers  the 
property  in  goods  to  the  buyer  for  a  consideration  called  the  price. 

(3)  A  contract  to  sell  or  a  sale  may  be  absolute  or  conditional. 

(4)  There  may  be  a  contract  to  sell  or  a  sale  between  one  part  owner 
and  another. 

Sbc.  3. — [Capacity — lAabiUties  for  Necessaries.']  Capacity  to  buy  and 
sell  is  regulated  by  the  general  law  concaning  capacity  to  contract,  and 
to  transfer  and  acquire  property. 

Where  necessaries  are  sold  and  delivered  to  an  infant,  or  to  a  person 
who  by  reason  of  mental  incapacity  or  drunkenness  is  incompetent  to 
contract,  he  must  pay  a  reasonable  price  therefor. 

Necessaries  in  this  section  mean  goods  suitable  to  the  condition  in 
life  of  such  infant  or  other  person,  and  to  his  actual  requirements  at  the 
time  of  delivery. 

Formalities  of  the  Contract, 

Sbc.  4. — {Form  of  Contract  or  Sale.]  Subject  to  the  provisions  of  this 
act  and  of  any  statute  in  that  behalf,  a  contract  to  sell  or  a  sale  may  be 
made  in  writing  (either  with  or  without  seal),  or  by  word  of  mouth,  or 
partly  in  writing  and  partly  by  word  of  mouth,  or  may  be  inferred  from 
the  conduct  of  the  parties. 

Sec.  5. — [Statute  of  Frauds.]  (1)  A  contract  to  sell  or  a  sale  of  any 
goods  or  choses  in  action  of  the  value  of  five  hundred  dollars  or  up- 
wards shall  not  be  enforceable  by  action  unless  the  buyer  shall  accept 
part  of  the  goods  or  choses  in  action  so  contracted  to  be  sold  or  sold,  and 
actually  receive  the  same,  or  give  something  in  earnest  to  bind  the  con- 
tract, or  in  part  payment,  or  unless  some  note  or  memorandum  in  writing 
of  the  contract  or  sale  be  signed  by  the  party  to  be  charged  or  his  agent 
in  that  behalf. 


•   COMMEBOB,   TRADI  AND   OOMMBROIAL  LAW.  297 

(2)  The  proviaioiui  of  this  seotion  apply  to  every  such  contract  or 
sale,  notwitfustandiDg  that  the  goods  may  be  intended  to  be  delivered  at 
some  future  time  or  may  not  at  the  time  of  such  contract  or  sale  be 
actually  made,  procured,  or  provided,  or  fit  or  ready  for  delivery,  or 
some  act  may  be  requisite  lor  the  making  or  completing  thereof,  or 
rendering  the  same  fit  for  delivery;  but  if  the  goods  are  to  be  manu- 
factured by  the  seller  especially  for  the  buyer  and  are  not  suitable  for 
sale  to  others  in  the  ordinary  course  of  the  seller^s  business,  the  pro- 
visions of  this  section  shall  not  apply. 

(3)  There  is  an  acceptance  of  goods  within  the  meaning  of  this  section 
when  the  buyer,  either  before  or  after  delivery  of  the  goods,  expresses 
by  words  or  conduct  his  assent  to  becoming  the  owner  of  those  specific 
goods. 

(4)  There  is  an  actual  receipt  of  goods  within  the  meaning  of  this 
section  if  the  goods  are  in  the  buyer's  posseenon  at  the  time  of  the 
bargain,  though  no  act  is  done  in  regard  to  them. 

(5)  The  seller  cannot  be  the  agent  of  the  buyer  either  to  accept  or 
actually  to  receive  the  goods,  but  a  third  person  may  be  the  agent  of 
both  parties  for  either  purpose,  or  for  both  purposes. 

Subject  Matter  oj  Contract. 

Sec.  6. — [Existing  and  Future  Goods.]  (1)  The  ^oods  which  form  the 
subject  of  a  contract  to  sell  may  be  either  existing  goods,  owned  or 
possessed  by  the  seller,  or  goods  to  be  manufactured  or  acquired  by  the 
seller  after  the  making  of  the  contract  to  sell,  in  this  act  called  "  future 
goods." 

(2)  There  may  be  a  contract  to  sell  goods,  the  acquisition  of  which  by 
the  seller  depends  upon  a  contingency  which  may  or  fnay  not  happen. 

(3)  Where  the  parties  purport  to  effect  a  present  sale  of  future  goods, 
the  agreement  operates  as  a  contract  to  sell  the  goods. 

Sbc.  7.— [l/ndivtrfcd  Shares.]  (1)  There  may  be  a  contract  to  sell  or 
a  sale  of  an  undivided  share  of  goods.  If  the  parties  intend  to  effect 
a  present  sale,  the  buyer,  by  force  of  the  agreement,  becomes  an  owner 
in  common  with  the  owner  or  owners  of  the  remaining  shares. 

(2)  In  the  case  of  fungible  goods,  or  of  any  goods  which  by  custom 
or  the  agreement  of  parties  are  treated  as  fungible,  there  may  be  a  sale  of 
an  undivided  share  of  a  specific  mass,  though  the  seller  purports  to  sell 
and  the  buyer  to  buy  a  definite  number,  weight  or  measure  of  the  goods 
in  the  mass,  and  though  tlie  number,  weight  or  measure  of  the  goods  in 
the  mass  is  undetermined.  By  such  a  sale  the  buyer  becomes  owner  in 
common  of  such  a  share  of  the  mass  as  the  number,  weight  or  measure 
bought  bears  to  the  number,  weight  or  measure  of  the  mass.  If  the  mass 
contains  less  than  the  number,  weight  or  measure  bought,  the  buyer 
becomes  the  owner  of  the  whole  mass  and  the  seller  is  bound  to  make 
good  the  deficiency  from  similar  goods  unless  a  contrary  intent  appears. 

Sbc.  8. — [Destruction  o]  Goods  Sold.]  (1)  Where  the  parties  purport 
to  sell  specific  goods,  and  the  goods  without  the  knowledge  of  the  seller 
have  wholly  perished  at  the  time  when  the  agreement  is  made,  the 
agreement  is  void. 

(2)  Where  the  parties  purport  to  sell  specific  goods,  and  the  goods 
without  the  knowledge  of  the  seller  have  perished  in  part  or  have  wholly 
or  in  a  material  part  so  deteriorated  in  quality  as  to  be  substantial^ 
changed  in  character,  the  buyer  may  at  his  option  treat  the  sale — 

(a)  As  avoided,  or 

(b)  As  transferring  the  property  in  all  of  the  existing  goods  or  in  so 
much  thereof  as  have  not  deteriorated,  and  as  hinding  we  buyer  to  pay 


298  BBPOBT  OF   GOMMITTBB  ON 


■ 

the  full  agreed  price  if  the  sale  was  indivisible  or  to  pay  the  Agreed  price 
for  the  goods  in  which  the  property  passes  if  the  sale  was  divisible. 

Sec.  9 r— [Destruction  of  Goods  Contracted  to  be^Sold,!  (1)  Where 
there  is  a  contract  to  seU  specific  goods,  and  subsequently,  but  before 
the  risk  passes  to  the  buyer,  without  any  fault  on  the  part  of  the  seller 
or  the  buyer,  the  goods  wholly  perish,  the  contract  is  thereby  avoided. 

(2)  Where  there  is  a  contract  to  sell  specific  goods,  and  subsequently, 
but  before  the  risk  passes  to  the  buyer,  without  any  fault  of  the  seller  or 
the  buyer,  part  of  the  goods  perish  or  the  whole  or  a  material  part  of  the 
goods  so  deteriorate  in  quality  as  to  be  substantially  changed  in  character, 
the  buyer  may  at  his  option  treat  the  contract — 

(a)  As  avoided,  or 

(b)  As  binding  the  seller  to  transfer  the  property  in  all  of  the  existing 
goods  or  in  so  much  thereof  as  have  not  detenorated,  and  as  binding  the 
buyer  to  pay  the  full  agreed  price  if  the  contract  was  indivisible,  or  to 
pay  the  agreed  price  for  so  much  of  the  goods  as  the  seller,  by  the  buyer's 
option,  is  bound  to  transfer  if  the  contract  was  divisible. 

Under  this  section,  and  under  the  preceding  section,  merely  taking  the 
existing  or  uninjured  goods  into  his  possession  shall  not  be  deemed  a 
conclusive  exercise  of  his  option  by  the  buyer ;  and  nothing  herein  shall 
preclude  the  enforcement  of  an  express  or  implied  agreement  of  the 
parties  that  the  buyer  shall  become  owner  of  the  existing  or  the  uninjured 
l^oods  at  a  fair  valuation  thereof,  though  the  contract  or  sale  was 
mdivisible. 

The  Price. 

Sec.  10. — [Definition  and  Ascertainment  of  Price.}    (1)  The  price  may 
be  fixed  by  the  contract,  or  may  be  left  to  be  fixed  in  such  manner  as  , 
may  be  agreed,  or  it  may  be  determined  by  the  course  of  dealing  between 
the  parties. 

(2)  The  price  may  be  made  payable  in  any  personal  property. 

(3)  Where  transferring  or  promising  to  transfer  any  interest  in  real 
estate  constitutes  the  whole  or  pari  of  the  consideration  for  transferring 
or  for  promising  to  transfer  the  property  in  goods,  this  act  shall  not 
apply. 

(4)  Where  the  price  is  not  determined  in  accordance  with  the  fore- 
going provisions  the  buyer  must  pay  a  reasonable  price.  What  is  a 
reasonable  price  is  a  question  of  fact  dependent  on  the  circumstances  of 
each  particular  case. 

Sec.  11. — [Sale  at  a  Valiiation.1  (1)  Where  there  is  a  contract  to  sell 
or  a  sale  of  goods  at  a  price  or  on  terms  to  be  fixed  by  a  third  person, 
and  such  third  person,  without  fault  of  the  seller  or  the  buyer,  cannot  or 
does  not  fix  the  price  or  terms,  the  contract  or  the  sale  is  thereby 
avoided ;  but  if  the  goods  or  any  part  thereof  have  been  delivered  to  and 
appropriated  by  the  buyer  he  must  pay  a  reasonable  price  therefor. 

(2)  Where  such  third  person  is  prevented  from  fixing  the  price  or 
terms  by  fault  of  the  seller  or  the  buyer,  the  party  not  in  fault  may  have 
such  remedies  against  the  party  in  fault  as  are  allowed  by  Parts  IV  and 
V  of  this  act. 

Conditions  and  Warranties. 

Sk.  I2.^[3ffeet  of  Conditions.]  (1>  Where  the  obligation  of  either 
party  to  a  contract  to  sell  or  a  sale  is  subject  to  any  condition  which  is 
not  performed,  such  party  may  refuse  to  proceed  with  the  contract  or 
sale  or  he  may  waive  performance  of  the  condition.  If  the  other  party 
has  promised  that  the  condition  should  happen  or  be  performed,  su<^ 
first-mentioned  party  may  also,  treat  liie  non-performance  of  tile  con- 
dition as  a  breaeh  of  warranty. 


COMMERCE^   TRADB  AND  COMMBROIAL  LAW.  299 

(2)  Where  the  property  ib  the  goods  has  not  pasBed,  the  buyer  may 
treat  the  fulfilhuent  by  ibe  seller  of  his  obligation  to  furnish  goods  as 
described  and  as  warranted  expressly  or  by  implication  in  the  contract 
to  sell  as  a  condition  of  the  obligation  of  the  buyer  to  perform  his 
promise  to  accept  and  pay  for  the  goods. 

(3)  Where  the  seller  contracts  to  sell  goods  **  to  arrive  "  or  "  expected 
to  arrive"  at  a  certain  place,  it  shall  be  presumed,  unless  a  different 
intention  appears  that  the  buyer  warrants  that  the  goods  have  been  or 
shall  be  duly  offered  for  transportation  to  the  place  where  they  are  said 
to  be  expected  to  arrive,  but  that  if  so  tenderea,  their  due  arrival  is  only 
a  condition  qualifying  the  obligations  of  both  parties. 

Sac.  IZ.-^lDe^nition  of  Express  Warranty.}  Any  afi&rmation  of  fact 
or  any  promise  by  the  seller  relating  to  the  goods  is  an  express  warranty 
if  the  natural  tendency  of  such  afimnation  or  promise  is  to  induce  the 
buyer  to  purchase  the  p^oods,  and  if  the  buyer  purchases  the  goods  relying 
thereon.  No  afiGurmation  of  the  value  of  the  goods,  nor  any  statement 
purporting  to  be  a  statement  of  the  seller's  opinion  only  shall  be  con- 
strued as  a  warranty. 

Sbc.  14.— [/mpitsa  Warranties  of  Title.}  In  a  contract  to  sell  or  a  sale, 
unless  a  contrary  intention  appears,  there  is — 

(1)  An  implied  warranty  on  the  part  of  the  seller  that  in  case  of  a 
sale  he  has  a  right  to  sell  the  goods,  and  that  in  case  of  a  contract  to  sell 
he  will  have  a  right  to  sell  the  goods  at  the  time  when  the  property  is 
to  pass. 

(2)  An  impUed  warranty  that  the  buyer  shall  have  and  enjov  quiet 
possession  of  the  goods  as  against  apy  lawful  claims  existing  at  the  time 
of  the  sale. 

(3)  An  implied  warranty  that  the  goods  shall  be  free  at  the  time  of 
the  sale  from  any  charge  or  encumbrance  in  favor  of  any  third  person, 
not  declared  or  known  to  the  buyer  before  or  at  the  time  when  the  con- 
tract or  sale  is  made. 

(4)  This  section  shall  not,  however,  be  held  to  render  liable  a  sheriff, 
auctioneer,  mortgagee,  or  other  person  professing  to  sell  by  virtue  of 
authority  m  fact  or  law  a  le^al  or  equitable  inter^  of  a  thinl  person  in 
the  goods  which  are  the  subject  of  the  sale  or  contract  to  sell. 

Sbc.  15.— {Implied  Warranty  in  Sale  by  Description.']  Where  there 
is  a  contract  to  sell  or  a  sale  of  goods  by  aescription,  there  is  an  implied 
warranty  that  the  goods  shall  correspond  with  uie  description  and  if  the 
contract  or  sale  be  by  sample,  as  well  as  by  description,  it  is  not  sufficient 
that  the  bulk  of  the  goods  corresponds  with  the  sample  if  the  goods  do 
not  also  correspond  with  the  description. 

Sbc.  16. — [ImpUed  Warranties  of  Quality.}  Subject  to  the  provisions 
of  this  act  and  of  any  statute  in  that  behalf^  there  is  no  implied  warranty 
or  condition  as  to  the  quality  or  fitness  for  any  particular  purpose  of 
goods  supplied  under  a  contract  to  sell  or  a  sale,  except  as  follows: 

(1)  Where  the  buyer,  expressly  or  by  implication,  makes  known  to  the 
seller  the  particular  purpose  for  which  the  goods  are  required,  and  it 
appears  that  the  buyer  relies  on  the  seller's  sldll  or  judgment  (whetiier 
he  be  the  grower  or  manufacturer  or  not),  there  is  an  implied  warranty 
that  the  goods  shal]  be  reasonably  fit  for  such  purpose. 

(2)  Where  the  ffoods  are  bought  by  description  from  a  seller  who  deals 
in  goods  of  that  description  (whether  he  be  the  grower  or  manufacturer 
or  not),  there  is  an  implied  warranty  that  the  goods  shall  be  of  mer- 
chantable quality. 

(3)  If  the  buyer  has  examined  the  goods,  there  is  no  implied  warranty 
as  regards  defects  which  such  examination  ought  to  have  revealed. 

(4)  Where  the  seller  has  contracted  to  sell  unspecified  goods,  he  is 
bound  to  deliver  such  goods  as  the  contract  requires,  though  he  is  neiUier 


300  REPORT  OP   COMMITTEE  ON 


a  dealer  nor  manufacturer.    The  effect  of  subsequent  acceptance  by  the 
buyer  of  goods  under  the  contract  is  governed  by  Section  36. 

(5)  In  the  case  of  a  contract  to  sell  or  a  sale  of  a  specified  article  under 
its  patent  or  other  trade  name,  there  is  no  impliea  warranty  as  to  its 
fitness  for  any  particular  purpose. 

(6)  An  implied  warranty  or  condition  as  to  quality  or  fitness  for  a 
particular  purpose  may  be  annexed  by  the  usage  of  trade. 

(7)  An  express  warranty  or  condition  does  not  negative  a  warranty  or 
condition  implied  under  tiiis  act  unless  inconsistent  therewiOi. 

Sale  by  Sample. 

Sec.  17. — {ImpUed  Warranties  in  Sale  by  Sample,}  In  the  case  of  a 
contract  to  sell  or  a  sale  by  sample: 

(a)  There  is  an  implied  warranty  that  the  bulk  shall  correspond  with 
the  sample  in  quality. 

(b)  Tnere  is  an  implied  warranty  that  the  buyer  shall  have  a  reason- 
able opportunity  of  comparing  the  bulk  with  the  sample,  except  so  far 
as  otherwise  provided  in  Section  34. 

(c)  If  the  seller  is  a  dealer  in  goods  of  that  kind,  there  is  an  implied 
warranty  that  the  ^oods  shall  be  free  from  any  defect  rendering  them 
unmerchantable  which  would  not  be  apparent  on  reasonable  examination 
of  the  sample. 

(d)  If  tne  sample  is  inconsistent  with  words  of  description  agreed 
upon  by  the  parties  there  is  an  implied  warranty  that  the  goods  shall 
correspond  to  the  description  and  shall  not  vary  from  the  sample  further 
than  correspondence  with  the  description  requires. 

PART  IL 
Transfbr  of  Pbopertt  as  Bbtwebn  Sbllbb  and  Butsr. 

Sec.  18. — [No  Property  Passes  Until  Goods  are  Ascertained.]  Where 
there  is  a  contract  to  sell  unascertained  goods  no  property  in  the  goods 
is  transferred  to  the  buyer  unless  and  until  the  goods  are  ascertained, 
but  property  in  an  undivided  share  of  ascertained  goods  may  be  trans- 
ferred as  provided  in  Section  7. 

Sec.  19. — [Property  in  Goods  Passes  token  Parties  so  Intend.]  (1) 
Where  there  is  a  contract  to  sell  specific  or  ascertained  goods,  or  goods 
which,  though  unascertained,  at  the  time  of  the  bargain,  nave  sub- 
sequently become  specified,  the  property  in  the  goods  is  transxerred  to  the 
buyer  at  such  time  as  the  parties  to  the  contract  intend  it  to  be  trans- 
ferred. 

(2)  For  the  purpose  of  ascertaining  the  intention  of  the  parties,  regard 
shall  be  had  to  the  terms  of  the  contract,  the  conduct  of  the  parties, 
usages  of  trade  and  the  circumstances  of  the  case. 

Sec.  20. — [RiUes  for  Ascertaining  Intention.]  Unless  a  different  inten- 
tion appears,  the  following  are  rules  for  ascertaining  the  intention  of  the 
garties  as  to  the  time  at  wnich  the  property  in  the  goods  is  to  pass  to  the 
uyer. 

Rule  1. — Where  there  is  an  unconditional  contract  to  sell  specific  goods, 
in  a  deliverable  state,  the  property  in  the  goods  passes  to  the  Duyer 
when  the  contract  is  made,  and  it  is  immaterial  whether  the  time  of 
payment,  or  the  time  of  delivery,  or  both,  be  postponed,  or  whether 
weighing  or  measuring  the  goods  is  necessary  to  fix  the  price. 

Rule  i. — Where  there  is  a  contract  to  sell  specific  goods  and  the  seller 
is  bound  to  do  something  to  the  goods,  for  the  purpose  of  putting  them 
into  a  deliverable  state,  the  property  passes  as  soon  as  such  thing  has 
l^en  done^  but  not  before.tbftt  ume> 


COMMEROB,  TRADE  AND  COMMEROIAL  LAW.  301 

Rule  5.-— (1)  When  goods  are  delivered  to  the  buyer  ''on  sale  or 
return,"  or  on  other  terms  indicating  an  intention  to  make  a  present 
sale,  but  to  give  the  buyer  an  option  to  return  the  goods  instead  of  pay- 
ing the  price,  the  property  passes  to  the  buyer  on  delivery,  but  he  mur 
revest  the  property  in  the  seller  by  returning  or  tendering  the  goods 
within  the  time  fixed  in  the  contract,  or,  if  no  tmie  has  been  fixed,  within 
a  reasonable  time. 

(2)  When  goods  are  delivered  to  the  buyer  on  approval  or  on  trial  or 
on  satisfaction,  or  other  similar  terms,  the  property  therein  passes  to  the 
buyer— 

(a)  When  he  signifies  his  approval  or  acceptance  to  the  seller  or  does 
any  other  act  adopting  the  transaotioii; 

(b)  If  he  does  not  signify  his  approval  or  lusoeptance  to  the  seller,  but 
retains  the  goods  without  giving  notice  of  rejection,  then,  if  a  time  has 
been  fixed  for  the  return  of  the  goods,  on  the  expiration  of  such  time, 
and,  if  no  time  has  been  fixed,  on  the  expiration  of  a  reasonable  time. 
What  is  a  reasonable  time  is  a  question  of  fact. 

Ride  4^—W  Where  there  is  a  contract  to  sell  unascertained  or  future 
goods  by  description,  and  goods  of  that  description  and  in  a  deliverable 
state  are  unconditionally  appropriated  to  the  contract,  either  by  the  seller 
witn  the  assent  of  the  buyer,  or  by  the  buyer  with  the  assent  of  the  seller, 
the  propoty  in  the  goods  thereupon  passes  to  the  buyer.  Such  assent 
may  be  expressed  or  implied,  and  may  be  given  either  before  or  after 
the  appropriation  is  made. 

(2)  Where,  in  pursuance  of  an  order  or  a  contract  to  sell,  the  seller 
delivers  goods  to  the  buyer,  or  to  a  carrier  or  other  bailee  for  the  purpose 
of  transmission  to  or  holding  for  the  buyer,  the  seller  is  presumed  to  have 
unconditionally  appropriated  the  goods  to  the  contract,  except  in  the 
cases  provided  for  m  toe  next  rules  and  in  Section  21. 

If  the  goods  conform  to  the  order  or  contract,  and  the  terms  and 
mode  of  deliveiy  to  the  carrier  or  other  bailee  were  expressly  or  im- 
pliedly authorized  by  the  buyer,  the  property  is  presumed  to  pass  on 
such  delivery  except  in  the  cases  provided  for  in  the  next  rules  and  in 
Section  21.  This  presumption  is  applicable  although  by  the  express  or 
implied  terms  of  the  order  or  contract,  the  buyer  is  to  pay  the  price 
before  receiving  delivery  of  the  goods,  and  the  goods  are  marked  with 
the  letters  C.  O.  D.  or  uieir  equivalent. 

Ride  6. — Where  an  order  or  a  contract  to  sell  requires  the  seller  to 
deliver  the  goods  at  a  particular  place  or  to  pay  as  a  separate  item  the 
frei^t  or  cost  of  transportation  to  a  particular  place  (whether  or  not 
these  terms  are  indicated  by  stating  the  goods  are  to  be  delivered  F.  O.  B. 
at  the  place)  the  property  passes,  except  in  the  case  stated  in  the  follow- 
ing rule,  when  goods  of  the  required  description  are  delivered  at  that 
place  in  accordance  with  the  terms  of  the  order  or  contract. 

Rtde  6, — ^Where  an  order  or  a  contract  to  sell  requires  the  seller  to 
deliver  the  goods  at  the  buyer's  residence  or  place  of  business  (not  merely 
at  the  town  where  such  residence  or  place  of  business  is  situated),  the 
property  will  not  pass  until  the  buyer,  after  inspection  of  the  goods,  has 
accepted  them. 

Sbc.  21. — IReeervation  of  Right  of  Posseuion  or  Property  when  Goods 
are  Shipped.]  (1)  Where  there  is  a  contract  to  sell  specific  goods,  or 
where  goods  are  subsequently  appropriated  to  the  contract,  the  seller 
may,  by  the  terms  of  the  contract  or  appropriation,  reserve  the  right  of 
possession  or  property  in  the  goods  until  certain  conditions  have  been 
fulfilled.  The  right  of  possession  or  property  may  be  thus  reserved  not- 
withstanding the  delivery  of  the  goods  to  the  buyer  or  to  a  carrier  or 
other  bailee  for  the  purpose  of  transmission  to  the  buyer. 


302  REPORT  OF   COMMITTRB  ON 


(2)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the  goods  are 
deliverable  to  the  seller  or  his  agent,  or  to  the  order  of  the  seller  or  of 
his  agent,  the  seller  therebv  reserves  the  property  in  the  goods.  But  if, 
except  for  the  form  of  the  bill  of  lading,  the  property  would  have  passed 
to  the  buver  on  shipment  of  the  goodlb,  the  seUer's  property  in  the  goods 
shall  be  deemed  to  be  only  for  the  purpose  of  securing  x>^rfonnance  by 
the  buyer  of  his  obligations  under  the  contract,  and  tne  buyer  shall  be 
deemed  to  have  a  property  right  in  the  goods  analogous  to  that  of  a 
mortgagor  or  a  buyer  under  a  conditional  sale. 

(3)  Where  goods  are  shipped  in  conformity  with  an  order  or  a  con- 
tract, and  a  single  sum  is  fixed  therein  as  the  payment  to  be  made  by  the 
buyer  for  the  cost  of  the  goods  and  their  insurance  and  freight  while  in 
transit  (whether  or  not  these  terms  are  indicated  by  the  iettov  C.  I.  F.), 
or  for  the  cost  of  the  goods  and  their  freight  while  in  transit  (whether 
or  not  these  terms  are  indicated  by  the  letters  O.  F.),  a  reservation  by 
the  seller  of  the  property  in  the  goods  or  of  the  right  of  possession  thereof 
shall  be  deemed  to  be  only  for  the  purpose  of  i^rocuring  performance 
by  the  buyer  of  his  obligations  under  the  contract  as  provided  in  sub- 
section (2). 

(4)  Where  in  conformity  with  an  order  or  a  contract,  goods  in  the 
hands  of  a  carrier  or  other  bailee  are  made  deliverable  by  the  seller 
(either  directly  or  by  indorsement)  by  means  of  a  document  of  title  to  a 
banker  or  other  person  who,  under  an  agreement  with  and  on  bdialf  of 
a  customer  or  chent,  pays  or  contracts  to  pay  the  price  of  the  goods  or 
makes  an  advance  on  the  faith  of  such  document,  sudi  banker  or  other 
person  acquires  the  property  in  the  goods,  but  only  for  the  purpose  of 
security,  and  the  customer  or  client  acquires  a  property  right  in  the  goods 
analogous  to  that  of  a  mortgagor  or  a  buyer  under  a  conditional  sale. 

(5)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the  goods  are 
deliverable  to  the  order  of  the  buyer  or  of  his  agent,  or  to  the  order  of  a 
banker  or  other  third  person,  but  poBsession  of  the  bill  of  lading  is  retained 
by  the  seller  or  his  agent,  tne  seller  thereby  reserves  a  right  to  the  pos- 
session of  the  goods  untO  he  has  been  paid  the  price.  A  retention  of  a 
straight  bill  of  lading  shall  have  no  such  effect. 

(6)  Where  the  seUer  of  goods  draws  on  the  buyer  for  the  price  and 
transmits  the  bill  of  exchange  and  bill  of  lading  together  to  the  buyer 
to  secure  acceptance  or  pajrment  of  the  bill  of  excnange,  the  buyer  is 
bound  to  return  the  bill  of  lading  if  he  does  not  honor  the  bill  of  ex- 
change, and  if  he  wrongfully  retains  the  bill  of  lading  he  acquires  no 
added  right  thereby.  If,  however,  the  bill  of  lading  provides  that  the 
goods  are  deliverable  to  the  buyer  or  to  the  order  of  the  btiyer,  or  is 
indorsed  in  blank,  or  to  the  buyer  by  the  consignee  named  therein,  one 
who  purchases  in  good  faith,  f<^  value,  the  bill  of  lading  or  the  goods  fnmi 
the  buyer  will  obtain  the  property  in  the  goods  although  the  bill  of 
exchange  has  not  been  honored,  provided  that  such  purchaser  has  re- 
ceived delivery  of  the  bill  of  ladmg  indorsed  by  the  consignee  named 
therein,  or  of  the  goods,  without  notice  of  the  facts  making  the  transfer 
wrongful. 

(7)  Transactions  to  which  this  section  relates  shall  not  be  deemed 
mortgages  or  conditional  aales  within  the  meaning  of  statutes  relating  in 
terms  to  mortgages  or  conditional  sales. 

8bc.  22. — [Sale  by  AuctionJl    In  case  of  sale  by  auction — 

(1)  Where  goods  are  put  up  for  sale  by  auction  in  lots,  each  lot  is 
the  subject  of  a  separate  contract  of  sale. 

(2)  A  sale  by  auction  is  complete  when  the  auctioneer  announces  its 
completion  by  the  fall  of  the  hammer,  or  in  other  customary  manner. 
Until  such  announcement  is  made,  any  bidder  may  retract  his  bid,  and 


COMMEBOB^   TRADE  AND  COMMERCIAL   LAW.  303 

the  auctioneer  may  withdraw  the  goods  from  aale  milesB  the  auction  has 
been  announced  to  be  without  reserve. 

(3)  A  right  to  bid  may  be  reserved  expressly  by  or  on  behalf  of  the 
seller. 

(4)  Where  notice  has  not  been  given  that  a  sale  by  auction  is  subject 
to  a  right  to  bid  on  behalf  of  the  seller,  it  shall  not  be  lawful  for  the 
seller  to  bid  himself  or  to  employ  or  induce  any  person  to  bid  at  such 
sale  on  his  behalf,  or  for  the  auctioneer  to  employ  or  induce  any  person 
to  bid  at  such  sale  on  behalf  of  the  seller  or  knowingly  to  take  any  bid 
from  the  seller  or  any  person  employed  bv  him.  Ab^  sale  contravening 
this  rule  may  be  treated  as  fradulent  by  the  buyer. 

Sbc.  23.— [Risk  of  Loss.}  Unless  otherwise  agreed,  the  goods  remain 
at  the  seller's  risk  until  the  property  therein  is  transferred  to  the  buyer, 
but  when  the  property  therein  is  transferred  to  the  buyer  the  goods  are  at 
the  buyer's  nsk  whether  deliveiy  has  been  made  or  not,  except  that — 

(a)  where  delivery  of  the  goods  has  been  made  to  the  buyer,  or  to  a 
bailee,  in  pursuance  of  the  contract,  and  the  property  in  the  goods  has 
been  retained  by  the  seller  or  transferred  to  a  banker  or  other  third 
person  as  security  for  the  performance  by  the  buyer  of  his  obligations 
under  the  contract,  the  goods  are  at  the  buyer's  risk  from  the  time  of 
such  delivery; 

(b)  Where  delivery  has  been  delaved  through  the  fault  of  either  buyer 
or  seller  the  goods  are  at  the  risk  of  the  party  in  fault  until  the  contract 
is  terminated  by  a  total  breach  or  otherwise,  as  regards  any  loss  which 
might  not  have  occurred  but  for  such  fault. 

Transfer  of  Title. 

Sec.  24.— [5ate  by  a  Person  Not  the  Ovmer,}  (1)  Subject  to  the  pro- 
visions of  this  act,  where  goods  are  sold  by  a  person  who  is  not  the 
owner  thereof,  and  who  does  not  sell  them  under  the  authority  or  with 
the  consent  of  the  owner,  the  buyer  acquires  no  better  title  to  the  goods 
than  the  seller  had,  unless  the  owner  of  the  goods  is  by  his  conduct 
precluded  from  denying  the  seller's  authority  to  sell. 
-   (2)  Nothing  in  this  act,  however,  shall  affect — 

(a)  The  provisions  of  any  factors'  acts,  recording  acts,  or  any  enact- 
ment enablmg  the  apparent  owner  of  goods  to  dispose  of  them  as  if  he 
were  the  true  owner  thereof; 

(b)  The  validity  of  any  contract  to  sell  or  sale  under  any  special 
common  law  or  statutory  power  of  sale  or  under  the  order  of  a  court  of 
competent  jurisdiction. 

Sbc.  26.— [Sale  by  One  Having  a  Voidable  Title.}  Where  the  seller  of 
goods  has  a  voidable  title  thereto,  but  his  title  has  not  been  avoided  at 
the  time  of  the  sale,  the  binrer  acquires  a  good  title  to  the  goods,  pro- 
vided he  buyB  them  in  good  faith,  for  value,  and  without  notice  of  the 
seller's  defect  of  title. 

Sbc.  2Q.—[Sale  by  Seller  in  Possession  of  Goods  Abready  Sold.}  Where 
a  person  having  sold  goods  continues  in  possession  of  the  goods,  or  of 
negotiable  documents  of  title  to  the  rooos,  the  delivery  or  transfer  by 
that  person,  or  by  an  agent  acting  for  him,  of  the  goods  or  documents  of 
title  under  any  sale,  pledge,  or  other  disposition  uiereof ,  to  any  penon 
receiving  and  paying  value  for  the  same  in  good  faith  ana  without  notice 
of  the  previous  sale,  shall  have  the  same  effect  as  if  the  person  making 
the  delivery  or  transfer  were  expressly  authorised  by  the  owner  of  the 
goods  to  make  the  same. 

Sic.  27.— iCreditorf^  Rights  Against  Sold  Goods  in  Seller's  Possession.} 
Where  a  person  having  sold  goods  continues  in  possession  of  the  floods, 
or  of  negotiable  documents  of  title  to  the  goods,  and  such  retention  of 


304  RBPOBT  OF   OOMMITTBE  ON 

possession  is  fraudulent  in  fact  or  is  deemed  fraudulent  under  any  rule 
of  law  of  the  state  where  the  goods  are  situated,  a  creditor  or  creditors  of 
the  seller  may  treat  the  sale  as  void. 

PART  in. 

Perfobmancb  of  the  Contbact. 

Sec.  28. — [Seller  Musi  Deliver  and  Buyer  Accept  Goods."]  It  is  the 
duty  of  the  seller  to  deliver  the  goods,  and  of  the  buyer  to  accept  and 
pay  for  them,  in  accordance  with  the  terms  of  the  contract  to  sell  or 
the  sale. 

Sec.  29. — [Delivery  and  Payment  are  Concurrent  Conditions.]  Unless 
otherwise  agreed,  delivery  of  the  goods  and  payment  of  the  price  are 
concurrent  conditions ;  that  is  to  say,  the  seller  must  be  ready  and  willing 
to  give  possession  of  the  goods  to  the  buyer  in  exchange  for  the  price 
and  the  buyer  must  be  ready  and  willing  to  pay  the  price  in  exchange  for 
possession  of  the  goods. 

Sec.  ZO.— [Place,  Time  and  Manner  of  Delivery.]  (1)  Whether  it  is 
for  the  buyer  to  take  possession  of  the  goods  or  for  the  seller  to  send 
them  to  the  buyer  is  a  question  depending  in  each  case  on  the  contract, 
express  or  implied,  between  the  parties.  Apart  from  any  such  contract, 
express  or  implied,  or  usage  of  trade  to  the  contrary,  the  place  of 
delivery  is  the  seller's  place  of  business  if  he  have  one,  and  if  not,  his 
residence;  but  in  case  of  a  contract  to  sell  or  a  sale  of  specific  goods, 
which  to  the  knowledge  of  the  parties  when  the  contract  or  the  sale  was 
made  were  in  some  other  place,  then  that  place  is  the  place  of  delivery. 

(2)  Where  by  a  contract  to  sell  or  a  sale  the  seller  is  bound  to  send  the 
goods  to  the  buyer,  but  no  time  for  sending  them  is  fixed,  the  seller  is 
bound  to  send  them  within  a  reasonable  time. 

(3)  Where  the  goods  at  the  time  of  sale  are  in  the  possession  of  a 
third  person,  the  seller  has  not  fulfilled  his  obligation  to  deliver  to  the 
buyer  unless  and  until  such  third  person  acknowledges  to  the  buyer  that 
he  holds  the  goods  on  the  buyer's  behalf;  but  as  against  all  others  than 
the  seller  the  buyer  shall  be  regarded  as  having  received  delivery  from 
the  time  when  such  third  person  first  has  notice  of  the  sale.  Nothing  in 
this  section,  however,  shall  afifect  the  operation  of  the  issue  or  negotia- 
tion or  transfer  of  any  document  of  title  to  goods. 

(4)  Demand  or  tender  of  delivery  may  be  treated  as  ineffectual  unless 
made  at  a  reasonable  hour.  What  is  a  reasonable  hour  is  a  question 
of  fact. 

(5)  Unless  otherwise  affreed,  the  expenses  of  and  incidental  to  putting 
the  goods  into  a  deliverable  state  must  be  borne  by  the  seller. 

Sec.  Zl.— [Delivery  oj  Wrong  Quantity.]  (1)  WTiere  the  seller  delivers 
to  the  buyer  a  quantity  of  goods  less  than  he  contracted  to  sell,  the 
buyer  may  reject  them,  but  if  the  buyer  accepts  or  retains  the  goods  so 
delivered,  knowing  that  the  seller  is  not  going  to  perform  the  contract 
in  full,  he  must  pay  for  them  at  the  contract  rate.  If,  howevo:,  the  buyer 
has  used  or  disposed  of  ^e  goods  delivered  before  he  knows  that  the 
seller  is  not  going  to  perform  his  contract  in  full,  the  buyer  shall  not  be 
liable  for  more  than  the  fair  value  to  him  of  the  goods  so  received. 

(2)  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods  laigar 
than  he  contracted  to  sell,  the  buyer  may  axscept  the  goods  mcluded  in 
the  contract  and  reject  the  rest,  or  he  may  reject  the  whole.  If  the  buyer 
accepts  the  whole  of  the  goods  so  deUvered  he  must  pay  for  them  at  the 

^  (3)  Where' the  seller  delivers  to  the  buyer  the  goods  he  contracted  to 
sell  mixed  with  goods  of  a  different  description  not  included  in  the  con- 


\ 


COMMERCE,   TRADE  ANP  COMMERCIAL  LAW.  306 

tract,  the  buyer  may  accept  the  goods  which  are  in  accordance  with  the 
contract  and  reject  tjie  rest,  or  he  may  reject  the  whole. 

(4)  The  provisions  of  this  section  are  subject  to  any  usage  of  trade, 
special  agreement,  or  course  of  dealing  between  the  parties. 

Sec.  32. — {Delivery  m  InstalmentaJ]  (1)  Unless  otherwise  agreed,  the 
buyer  of  goods  is  not  bound  to  accept  delivery  thereof  by  instalments. 

(2)  Where  there  is  a  contract  to  sell  goods  to  be  delivered  by  stated 
instalments,  which  are  to  be  separately  ^paid  for,  and  the  seller  makes 
defective  deliveries  in  respect  of  one  or  more  instalments,  or  the  buyer 
neglects  or  refuses  to  take  delivery  of  or  to  pay  for  one  or  more  instal- 
ments, it  depends  in  each  case  on  the  terms  of  the  contract  and  the  cir- 
cumstances of  the  case,  whether  the  breach  of  contract  is  so  material  as  to 
justify  the  injured  party  in  refusing  to  proceed  further  and  suing  for 
damages  for  breach  of  the  entire  contract,  or  whether  the  breach  is 
severable,  giving  rise  to  a  claim  for  compensation,  but  not  to  a  right  to 
treat  the  whole  contract  as  broken. 

Sbc.  dZ.— {Delivery  to  a  Carrier  on  Behalf  of  the  BuyerJ]  (1)  Where, 
under  the  terms  of  a  contract  to  sell  or  a  sale,  or  of  an  offer  to  buy,  the 
seller  is  authorized  or  required  to  send  the  goods  to  the  buyer,  delivery  of 
the  goods  to  any  carrier,  within  the  express  or  implied  terms  of  the  con- 
tract or  offer,  for  the  purpose  of  transmission  to  the  buyer  is  deemed  to 
be  a  dehvery  of  the  goods  to  the  buyer,  except  in  the  cases  provided  for 
in  Section  20,  Rules  5  and  6  or  unless  a  contrary  intent  appears. 

(2)  Unless  otherwise  authorized  by  the  buyer,  the  seller  must  make 
such  contract  with  the  carrier  on  behalf  of  the  buyer  as  may  be  reason- 
able, having  regard  to  the  nature  of  the  goods  and  the  other  circum- 
stances of  the  case'.  If  the  seller  omit  so  to  do,  and  the  goods  are  lost  or 
damaged  in  course  of  transit,  the  buyer  may  decline  to  treat  the  delivery 
to  the  carrier  as  a  delivery  to  himself,  or  may  hold  the  seller  responsible 
in  damages. 

(3)  Unless  otherwise  agreed,  where  goods  are  sent  by  the  seller  to  the 
buyer  under  circumstances  in  which  the  seller  knows  or  ought  to  know 
that  it  is  usual  to  insure,  the  seller  must  give  such  notice  to  the  buyer 
as  may  enable  him  to  insure  them  during  their  transit,  and,  if  the  seller 
fails  to  do  so,  the  goods  shall  be  deemed  to  be  at  his  risk  during  such 
transit. 

Sbc.  34. — {Right  to  Examine  the  Goods.}  (1)  Where  goods  are 
delivered  to  the  buyer,  which  he  has  not  previously  examined,  he  is  not 
deemed  to  have  accepted  them  unless  anci  until  he  has  had  a  reasonable 
opportunity  of  examining  them  for  the  purpose  of  ascertaining  whether 
they  are  in  conformity  with  the  contract. 

(2)  Unless  otherwise  agreed,  when  the  seller  tenders  delivery  of  goods 
to  the  buyer,  he  is  bound,  on  request,  to  afford  the  buyer  a  reasonable 
opportimity  of  examining  the  goods  for  the  purpose  of  ascertaining 
whether  they  are  in  conformity  with  the  contract. 

(3)  Where  goods  are  delivered  to  a  carrier  by  the  seller,  in  accordance 
with  an  order  from  or  agreement  with  the  buyer,  upon  the  terms  that 
the  goods  shall  not  be  delivered  by  the  carrier  to  the  buyer  until  he  has 
paid  the  price,  whether  such  terms  are  indicated  by  marking  the  goods 
with  the  words  "  collect  on  dehvery,"  "  C.  O.  D.,"  or  otherwise,  or  where 
the  buyer  has  agreed  to  pay  the  price  on  receiving  documents  of  title, 
the  buyer  is  not  entitled  to  examine  the  goods  before  payment  of  the 
price  in  the  absence  of  agreement  permitting  such  examination. 

Sbc.  35^ — {What  Constitutes  Acceptance,}  The  buyer  is  deemed  to 
have  accepted  the  goods  when  he  intimates  to  the  seller  that  he  has 
accepted  them,  or  when  the  goods  have  been  delivered  to  him,  and  he 
does  any  act  in  relation  to  them  which  is  inconsistent  with  the  ownership 


/ 


306  RBPOKT  OF   qOMMITTBE  ON 

of  the  seller,  or  when,  after  the  lapse  of  a  reasonable  time,  he  retains  the 
goods  wiUiout  intimating  to  the  seller  that  he  has  rejected  them. 

Sbg.  36. — [Acceptance  Does  Not  Bar  Action  for  Danuiges.']  In  the 
absence  of  express  or  implied  agreement  of  the  parties,  acceptance  of  the 
goods  by  the  buyer  does  not  discharge  the  seller  from  liability  in  damages 
or  other  legal  remedy  for  breach  of  any  promise  or  warranty  in  the  con- 
tract to  sell  or  the  sale.  But  if,  after  acceptance  of  the  goods,  the  buyer 
fails  to  give  notice  to  the  seller  of  the  breach  of  any  promise  or  warranty 
within  a  reasonable  time  after  the  buyer  knows,  or  ought  to  know  of  such 
breach,  the  seller  shall  not  be  liable  therefor. 

Sec.  37. — [Buyer  is  Not  Bound  to  Return  Goods  Wrongly  Delivered.] 
Ui^ess  otherwise  agreed,  where  goods  are  delivered  to  the  buyer,  and  he 
refuses  to  accept  them,  having  the  ri^t  so  to  do,  he  is  not  bound  to 
return  them  to  the  seller,  but  it  is  sufQcient  if  he  notifies  the  seller  that  he 
refuses  to  accept  them. 

Sec.  38. — [Buyer^s  Liability  for  Failing  to  Accept  Pelivery.}  When  the 
seller  is  ready  and  willing  to  deliver  the  goods,  and  requests  the  buyer  to 
take  delivery,  and  the  buyer  does  not  within  a  reasonable  time  after  such 
request  take  delivery  of  the  goods,  he  is  liable  to  the  seller  for  any  loss 
occasioned  by  his  neglect  or  refusal  to  take  delivery,  and  also  for  a 
reasonable  charge  for  the  care  and  custody  of  the  goods.  If  the  neglect 
or  refusal  of  the  buyer  to  take  delivery  amounts  to  a  repudiation  or 
breach  of  the  entire  contract,  the  seller  dhall  have  the  rights  against  the 
goods  and  on  the  contract  hereinafter  provided  in  favor  of  the  seller 
when  the  buyer  is  in  default. 

Sbg.  Z9.-^[F,  0.  B.  ffiipmenisJ]  Unless  a  contrary  intention  appears, 
a  contract  to  sell  providing  for  the  delivery  of  goods  F.  O.  B.  a  named 
place  means  that  the  goods  are  to  be  put  in  the  poasession  of  a  carrier 
free  of  charges  at  that  place,  for  transmission  or  delivery  to  the  buyer, 
and  in  the  absence  of  terms  inconsistent  therewith  imposes  upon  the 
seller: 

(a)  The  duty  of  putting  the  goods  in  the  possession  of  the  carrier  and 
of  paying  all  charges  of  loading  or  transportation  until  the  goods  reach 
the  place  named ; 

(b)  The  duty  of  obtaining  from  the  carrier  a  bill  of  lading  for  the 
^oods,  which  may,  however,  if  the  seller  is  unpaid,  reserve  the  property 
m  him  for  security  as  provided  in  Section  21 ; 

(c)  The  risk  of  loss  imtil  the  goods  are  in  the  possession  of  the  carrier 
at  the  named  place. 

Such  a  contract,  in  the  absence  of  terms  unconsistent  therewith,  im- 
poses upon  the  buyer: 

(a)  The  duty  of  paying  the  price  on  performance  by  the  seller  of  his 
obligations ; 

(b)  The  risk  of  loss  from  the  time  that  the  goods  are  in  the  possession 
of  the  carrier  at  the  named  place. 

Sbc.  40.— [C.  /.  F.  ShipmentsJ]  Unless  a  contrarv  intention  appears,  a 
contract  to  sell  providing  for  the  shipment  of  gooas  C.  I.  F.  means  that 
the  goods  are  to  be  put  in  the  possession  of  a  carrier  for  transmission  to 
the  buyer  and  that  the  price  to  be  paid  includes  in  a  lump  sum  the  cost 
of  the  goods,  the  freight  to  the  place  of  destination,  and  the  premium  for 
insurance  of  the  goods  during  transit.  Such  a  contract  in  the  absence  of 
terms  inconsistent  therewith  imposes  upon  the  seller: 

(a)  The  duty  of  putting  the  goods  in  the  hands  of  the  carrier,  and  of 
pa3dng  all  charges  of  loading  and  freight  to  the  place  of  destination; 

(b)  The  duty  of  obtaining  from  the  carrier  a  bill  of  lading  for  the 
f^oodis,  which  may,  however,  if  the  seller  is  unpaid,  reserve  the  property 
m  him  for  security  as  provided  in  Section  21 ; 


COMMEKOB,   TRADE  AND  COMMERCIAL  LAW.  307 

(c)  The  duty  of  obtaining  a  policy  of  insurance,  insuring  the  goocbs 
during  transit,  and  paying  the  premium  therefor; 

(d)  The  duty  of  tendering  to  the  buyer,  on  condition  of  receiving  con- 
current payment  of  the  price.  (1)  a  bill  of  lading,  which  by  indorsement 
or  otherwise  makes  the  gooas  deliverable  at  destination  to  the  buyer; 

(2)  a  policy  of  insurance,  with  premium  paid,  under  which  payment  for 
loss  or  injury  to  the  gooos  during  transit  is  made  payable  to  the  buyer ; 

(3)  a  receipt  from  the  carrier  showing  that  the  freight  has  been  prepaid 
or  payment  thereof  secured. 

(e)  The  risk  of  loss  or  injury  to  the  goods  until  they  have  been 
delivered  to  the  carrier  and  covered  by  insurance. 

Such  a  contract  in  the  absence  of  terms  inconsistent  therewith,  im- 
poses upon  the  buyer: 

(a)  The  duty  of  paying  the  price  on  tender  by  the  seller  of  the  docu- 
ments due  from  him  as  above  stated; 

(b)  The  risk  of  loss  from  the  time  that  the  goods  have  been  delivered 
to  the  carrier  and  covered  by  insurance. 

Sec.  41. — [Interpretation  of  Other  Mercantile  Contracts.}  Unless  a 
contrary  intention  appears,  a  contract  to  sell  providing  for  the  delivery 
of  goods  F.  A.  S.  a  vessel  at  a  named  port  means  that  the  goods  are  to  be 
deCvered  alongside  the  vessel  free  of  charges,  and  imposes  upon  the 
seller  the  same  obligations  as  a  contract  to  deliver  the  goods  F.  0.  B.  the 
vessel  at  the  named  port  except  that  the  seller  does  not  assume  the  duty 
or  expense  of  loading  after  the  goods  have  been  delivered  to  the  carrier 
alongside  the  vessel. 

Unless  a  contrary  intention  appears  a  contract  to  sell  goods  C.  F.  or 
C.  A.  F.  or  C.  and  F.  means  that  the  eoods  are  to  be  put  in  the  posses- 
sion of  a  carrier  for  transmission  to  the  buyer  and  that  the  price  to  be 
paid  includes  in  a  lump  sum  the  cost  of  the  goods  and  the  freight  to 
the  place  of  destination.  Such  a  contract  imposes  upon  the  seller  in  the 
absence  of  terms  inconsistent  therewith  the  same  duties  as  a  G.I.F. 
contract  except  that  of  obtaining  insurance.  The  risk  is  on  the  buyer 
from  the  time  of  shipment  and  the  price  is  payable  on  tender  of  a 
proper  bill  of  lading  and  receipt  showing  that  tne  freight  has  been  pre- 
paid or  its  payment  secured. 

A  contract  to  sell  goods  C.A.C.  (that  is  for  a  price  including  in  a 
lump  sum  the  cost  of  the  goods  and  all  charges  to  the  place  of  destina- 
tion) has  the  same  effect  as  a  contract  to  sell  goods  G.  F.,  except  not 
only  freight  but  all  charges  on  the  soods  to  the  place  of  destination 
must  be  paid  or  their  payment  securea  by  the  seller. 

Sec.  42.— [FatZure  of  Carrier  to  Provide  Means  of  Transportation.'] 
In  all  cases  where  the  contract  provides  that  goods  shall  be  transported 
by  a  specific  carrier,  or  is  based  on  the  express  or  tacit  assumption  that 
they  will  be  so  transported,  if  that  carrier  fails  when  duly  requested,  and 
without  legal  liability  therefor,  to  furnish  cars  for  loading  the  goods,  or 
means  of  transporting  the  goods  to  the  named  place,  the  seller  is  not 
liable  to  the  buyer  for  delay  in  performance  or  for  non-performance  of 
the  contract  thus  caused. 

PART  IV. 

Rights  of  Unpaid  Seller  Against  the  Goods. 

Sec.  ^.—[Definition  of  Unpaid  Seller.}  (1)  The  seller  of  goods  is 
deemed  to  be  an  unpaid  seller  within  the  meaning  of  this  act — 

(a)  When  the  whole  of  the  price  has  not  been  paid  or  tendered; 

(b)  When  a  bill  of  exchange  or  other  n^otiable  instrument  has  been 
received  as  conditional  pasrment,  and  the  condition  on  which  it  was 


308  BEPOBT  OF   COMMITTEE  ON 

received  has  been  broken  by  reason  of  the  dishonor  of  the  instrument, 
the  insolvency  of  the  buyer,  or  otherwise. 

(2)  In  this  part  of  this  act  the  term  "  seller  "  includes  an  agent  of  the 
seller  to  whom  the  bill  of  lading  has  been  indorsed,  or  a  consignor  or 
agent  who  has  himself  paid,  or  is  directly  responsible  for,  the  price,  or 
any  other  person  who  is  in  the  position  of  a  seller. 

Sbc.  44. — [Remedies  of  an  Unpaid  SeUerJ]  (1)  Subject  to  the  pro- 
visions of  this  act,  notwithstanding  that  the  property  in  the  goods  may 
have  passed^  the  buyer,  unpaid  seller  of  goods,  as  such,  has — 

(a)  A  lien  on  the  goods  or  right  to  retain  them  for  the  price  while  he  is 
in  possession  of  them; 

(b)  In  case  of  the  insolvency  of  the  buyer,  a  right  of  stopping  the 
goods  in  transitu  after  he  has  parted  with  the  possession  of  them ; 

(c)  A  right  of  resale  as  limited  by  this  act ; 

(d)  A  right  to  rescind  the  sale  as  limited  by  this  act. 

(2)  Where  the  property  in  goods  has  not  passed  to  the  buyer,  the 
unpaid  seller  has,  in  addition  to  his  other  remedies,  a  right  of  with- 
holding delivery  similar  to  and  coextensive  with  his  rights  of  ^lien  and 
stoppage  in  transitu  where  the  property  has  passed  to  buyer. 

Unpaid  Seller^s  Lien. 

Sec.  45. — [When  Right  of  Lien  May  be  Exercised.]  (1)  Subject  to 
the  provisions  of  this  act,  the  unpaid  seller  of  goods  who  is  in  possession 
of  them  is  entitled  to  retain  possession  of  them  until  payment  or  tender 
of  the  price  in  the  following  cases,  namely: 

(a)  Where  the  goods  have  been  sold  without  any  stipulation  as  to 
credit ; 

(b)  Where  the  goods  have  been  sold  on  credit,  but  the  term  of  credit 
has  expired; 

(c)  Where  the  buyer  becomes  insolvent. 

(2)  The  seller  may  exercise  his  right  of  lien  notwithstanding  that  he  is 
in  possession  of  the  goods  as  agent  or  bailee  for  the  buyer. 

Sec.  46. — [Lien  After  Part  Delivery.]  Where  an  unpaid  seller  has  made 
part  delivery  of  the  goods,  he  may  exercise  his  right  of  lien  on  the 
remainder,  unless  such  part  delivery  has  been  made  under  such  circum- 
stances as  to  show  an  intent  to  waive  the  lien  or  right  of  retention. 

Sec.  47. — [When  Lien  is  Lost.]  (1)  The  unpaid  seller  of  goods  loses  his 
lien  thereon — 

(a)  When  he  dehvers  the  goods  to  a  carrier  or  other  bailee  for  the 
purpose  of  transmission  to  the  buyer  without  reserving  the  property  in 
the  goods  or  the  right  to  the  possession  thereof; 

(b)  When  the  buyer  or  his  agent  lawfully  obtains  possession-  of  the 
goods; 

(c)  By  waiver  thereof. 

(2)  The  unpaid  seller  of  goods,  having  a  lien  thereon,  does  not  lose 
his  lien  by  reason  only  that  he  has  obtained  judgment  or  decree  for  the 
price  of  the  goods. 

Stoppage  in  Transitu. 

Sbc.  48. — [SeUer  May  Stop  Goods  on  Buyer's  Insolvency.]  Subject  to 
the  provisions  of  this  act,  when  the  buyer  of  goods  is  or  becomes  in- 
solvent, the  unpaid  seller  who  has  parted  with  the  possession  of  the  goods 
has  the  right  of  stopping  them  in  transitu;  that  is  to  say,  he  may  resuzne 
possession  of  the  goods  at  any  time  while  they  are  in  transit,  and  he  wiU 
then  become  entitled  to  the  same  rights  in  regard  to  the  goods  as  he 
would  have  had  if  he  had  never  parted  with  the  possession. 

Sec.  AQ.--[When  Goods  Are  in  Transit.]  (1)  Goods  are  in  transit 
within  the  meaning  of  Section  48^ 


COMKEECE,  TEADB  AND   CO^KEBCIAL  I«AW.  309 

(a)  From  the  time  when  they  are  delivered  to  a  carrier  by  land  or 
water,  or  to  any  other  bailee,  for  the  purpose  of  transmission  to  the 
buyer,  until  the  buyer,  or  his  agent  in  that  behalf,  takes  delivery  of  them 
from  such  carrier  or  other  bailee; 

(b)  If  the  goods  are  rejected  by  the  buyer,  and  the  carrier  or  other 
bailee  continues  in  possession  of  them,  even  if  the  seller  has  refused  to 
receive  them  back. 

(2)  Goods  are  no  longer  in  transit  within  the  meaning  of  Section  48 — 

(a)  If  the  buyer,  or  his  agent  in  that  behalf,  obtains  deliveiy  of  the 
goods  at  or  before  their  arrival  at  the  appointed  destination ; 

(b)  If,  after  the  arrival  of  the  goods  at  the  appointed  destination,  the 
carrier  or  other  bailee  acknowledges  to  the  buyer  or  his  agent  that  he 
holds  the  goods  on  his  behalf  and  continues  in  possession  of  them  as 
bailee  for  the  buyer  or  his  agent;  and  it  is  immaterial  that  a  further 
destination  for  the  goods  may  have  been  indicated  by  the  buyer; 

(c)  If  the  carrier  or  other  bailee  wrongfully  refuses  to  deliver  the 
goods  to  the  buyer  or  his  agent  in  that  behalf. 

(3)  If  goods  are  delivered  to  a  ship  chartered  by  the  buyer,  it  is  a 
question  depending  on  the  circumstances  of  the  particular  case,  whether 
diey  are  in  the  possession  of  the  master  as  a  carrier  or  as  agent  of  the 
buyer. 

(4)  If  part  delivery  of  the  goods  has  been  made  to  the  buyer,  or  his 
agent  in  that  behalf,  the  remainder  of  the  goods  may  be  stopped  in 
transitu,  unless  such  part  delivery  has  been  made  under  such  circum- 
stances as  to  show  an  agreement  with  the  buyer  to  give  up  possession 
of  the  whole  of  the  goods. 

Sbc.  60. — [Ways  of  Exercising  the  Right  to  8top,1  (1)  The  unpaid 
seller  may  exercise  his  righH  of  stoppage  in  transitu  either  by  obtaining 
actual  possession  of  the  goods  or  by  giving  notice  of  his  claim  to  the 
carrier  or  other  bailee  in  whose  possession  the  goods  are.  Such  notice 
may  be  |[iven  either  to  the  person  in  actual  possession  of  the  goods  or  to 
his  principal.  In  the  latter  case  the  notice,  to  be  effectual,  miist  be  given 
at  such  time  and  under  such  circumstances  that  tiie  principal,  by  the 
exercise  of  reasonable  diligence,  may  prevent  a  delivery  to  the  Duyer. 

(2)  When  notice  of  stoppage  in  transitu  is  given  by  the  seller  to  the 
carrier,  or  other  bailee  in  possession  of  the  goods,  he  must  redeliver  the 
goods  to,  or  according  to  the  directions  of,  the  seller.  The  expenses  of 
such  redelivery  must  be  borne  by  the  seller.  If,  however,  a  negotiable 
document  of  title  representing  the  goods  has  been  issued  oy  the  carrier 
or  other  bailee,  he  shall  not  be  obliged  to  deliver  or  justified  in  deliver- 
ing the  goods  to  the  seller  unless  such  document  is  first  surrendered  for 
cancellation. 

Resale  by  the  Seller, 

Sec.  51.— [When  and  How  Resale  May  he  Made.^  (1)  Where  the 
goods  are  of  a  perishable  nature,  or  where  the  seller  expressly  reserves 
the  right  of  resale  in  case  the  buyer  should  make  default,  or  where  the 
buyer  has  repudiated  the  contract  to  sell  or  sale,  or  has  been  in  default 
in  the  payment  of  the  price  an  unreasonable  time,  an  unpaid  seller 
having  a  right  of  lien  or  having  stopped  the  goods  in  transitu  may  resell 
the  goods.  He  shall  not  thereafter  be  liable  to  the  original  buyer  upon 
the  contract  to  sell  or  the  sale  or  for  any  profit  made  by  such  resale,  but 
may  recover  from  the  buyer  damages  for  any  loss  occasioned  by  the 
breach  of  the  contract  or  the  sale. 

(2)  Where  a  resale  is  made,  as  authorized  in  this  section,  the  buyer 
thereunder  acquires  a  good  title  as  against  the  original  buyer. 

(3)  It  is  not  essential  to  the  validity  of  a  resale  that  notice  of  an  inten- 
tion to  resell  the  goods  be  given  by  the  seller  to  the  original  buyer.   But 


310  BEPORT  OP   COMMITTEE  ON 

where  the  right  to  resell  is  not  based  on  the  perishable  nature  of  the 
goods  or  upon  an  express  i}rovision  of  the  contract  or  the  sale,  the  giving 
or  failure  to  give  such  notice  shall  be  relevant  in  any  issue  involving  the 
question  whether  the  buyer  had  been  in  default  an  unreasonable  time 
before  the  resale  was  made. 

(4)  It  is  not  essential  to  the  validity  of  a  resale  that  notice  of  the  time 
and  place  of  such  resale  should  be  given  by  the  seller  to  the  original 
buyer. 

(5)  The  seller  is  bound  to  exercise  reasonable  care  and  judgment  in 
making  a  resale,  and  subject  to  this  requirement  may  make  a  resale  either 
by  public  or  private  sale. 

Rescission  by  the  Seller. 

Sec.  61. —[When  and  How  the  Seller  May  Rescind  the  Sale  J]  (1)  An 
unpaid  seller  having  a  right  of  lien  or  having  stopped  the  goods  in 
transitu,  may  rescind  the  transfer  of  title  and  resume  the  property  in  the 
goods,  where  he  expressly  reserved  the  right  to  do  so  in  case  the  buyer 
&ould  make  default,  or  where  the  buyer  has  been  in  default  in  the  pay- 
ment of  the  price  an  unreasonable  time.  The  seller  shall  not  thereafter 
be  liable  to  the  buyer  upon  the  contract  to  sell  or  the  sale,  but  may 
recover  from  the  buyer  damages  for  any  loss  occasioned  by  the  breach 
of  the  contract  or  the  sale. 

(2)  The  transfer  of  title  shall  not  be  held  to  have  been  rescinded  by  an 
unpaid  seller  until  he  has  manifested  by  notice  to  the  buyer  or  by  some 
other  overt  act  an  intention  to  rescind.  It  is  not  necessaiy  that  such 
overt  act  should  be  communicated  to  the  buyer,  biit  the  giving  or  failure 
to  give  notice  to  the  buyer  of  the  intentioikto  rescind  suall  be  relevant 
in  any  issue  involving  the  Question  whether  the  buyer  had  been  in 
default  an  unreasonable  time  before  the  right  of  rescission  was  asserted. 

Sec.  62.-^[Effect  of  Sale  of  Goods  Subject  to  Lien  or  Stopp<ige  in 
Transitu.]  Subject  to  the  provisions  of  this  act,  the  unpaid  seller's  risht 
of  lien  or  stoppage  in  transitu  is  not  affected  by  any  sale,  or  other  ais- 
position  of  the  goods  which  the  buyer  may  have  made,  unless  the  seller 
has  assented  thereto. 

If,  however,  a  negotiable  document  of  title  has  been  issued  for  goods, 
no  seller's  lien  or  right  of  stoppage  in  transitu  shall  defeat  the  right  of 
any  purchaser  for  value  in  good  faith  to  whom  such  document  has  been 
negotiated,  whether  such  negotiation  be  prior  or  subsequent  to  the 
notification  to  the  carrier  or  other  bailee  who  issued  such  document,  of 
the  seller's  claim  to  a  lien  or  right  of  stoppage  in  transitu, 

PART  V. 

Actions  fob  Bbkach  or  thb  Ck>NTBACT. 

Remedies  of  the  Seller, 

Sec.  53. — [Action  for  the  Price.]  (1)  Where,  under  a  contract  to  sell 
or  a  sale,  the  property  in  the  goods  has  passed  to  the  buyer,  and  the 
buyer  wrongfully  neglects  or  refuses  to  pay  for  the  goods  according  to 
the  terms  of  the  contract  or  the  sale,  the  seller  may  maintain  an  action 
against  him  for  the  price  of  the  goods. 

(2)  Where  the  seller  has  retained  the  property  in  the  goods  merely  for 
securing  payment  of  the  price,  he  may,  after  offerinj;  to  the  buyer  to 
.surrender  such  property  interest  on  condition  of  receiving  the  price  in 

accordance  with  the  terms  of  the  contract,  maintain  an  action  for  the 
price  of  the  goods. 

(3)  Where,  imder  a  contract  to  sell  or  a  sale,  the  price  is  payable  on  a 
day  certain,  irrespective  of  delivery  or  of  transfer  of  title,  and  the  buyer 


GOMMiERCBy  TBADE  AND  GOHISEBCIAL  LAW.  311 

wrongfully  neglects  or  refuses  to  pay  such  price,  the  seller  may  maintain 
an  action  for  the  price,  although  the  property  in  the  goods  has  not 
passed,  and  the  goods  have  not  been  appropriated  to  the  contract.  But 
it  shall  be  a  defense  to  such  an  action  that  the  seller  at  any  time  before 
judgment  in  such  action  has  manifested  an  inability  to  perform  the  con- 
tract or  the  sale  on  his  part  or  an  intention  not  to  perform  it. 

(4)  Although  the  property  in  the  goods  has  not  passed,  if  they  cannot 
readily  be  resold  for  a  reasonable  price,  and  if  the  provisions  of  Section 
54  (4)  are  not  applicable,  the  seller  may  offer  to  deliver  the  goods  to  the 
buyer,  and,  if  the  buyer  refuses  to  receive  them,  may  notity  the  buyer 
that  the  goods  are  thereafter  held  by  the  seller  as  bailee  for  the  buyer. 
Thereafter  the  seller  may  treat  the  goods  as  the  buyer's  and  may  main- 
tain an  action  for  the  price. 

Etac.  64. — [Action  for  Damages  for  Non-Acceptance  of  the  Goods.] 
(1)  Where  the  buyer  wrongfully  n^lects  or  refuses  to  accept  and 'pay 
for  the  goods,  the  seller  may  maintain  an  action  against  him  for  damages 
for  non-acceptance. 

(2)  The  measure  of  damages  is  the  estimated  loss  directly  and  natur- 
ally resulting,  in  the  ordinary  course  of  events,  from  the  buyer's  breach 
of  contract. 

(3)  Where  there  is  an  available  market  for  the  goods  in  question,  the 
measure  of  damages  is,  in  the  absence  of  special  circumstances  showing 
proximate  damage  of  a  different  amount,  the  difference  between  the  con- 
tract price  and  the  market  or  current  price  at  the  time  or  times  when  the 
goods  ought  to  have  been  accepted,  or,  if  no  time  was  fixed  for  accep- 
tance, then  at  the  time  of  the  refusal  to  accept. 

(4)  If,  while  labor  or  expeiise  of  material  amount  is  neoessaiy  on  the 
part  of  the  seller  to  enable  bim  to  fulfill  his  obligations  under  the  ccm- 
tract  to  sell  or  the  sale,  the  buyer  repudiates  the  contract  or  the  sale,  or 
notifies  the  seller  to  proceed  no  further  therewith,  the  buyer  diall  be 
liable  to  the  seller  for  no  greater  damages  than  the  seller  would  have 
suffered  if  he  did  nothing  towards  carrying  out  the  contract  or  the  sale 
after  receiving  notice  of  the  buyer's  repuoiation  or  countermand.  The 
profit  the  seller  would  have  made  if  the  contract  or  the  sale  had  been  fully 
performed  shall  be  considered  in  estimating  such  damages. 

8bg.  65. — [When  Seller  May  Rescind  Contract  or  Sale,}  Where  the 
goods  have  not  been  delivered  to  the  buyer,  and  the  huy&r  has  repudiated 
the  contract  to  sell  or  sale,  or  has  manifested  his  inabiuty  to  penorm  his 
obligations  thereunder,  or  has  conmiitted  a  material  breach  thereof,  the 
seller  may  totally  rescind  the  contract  or  the  sale  by  giving  notice  of  his 
election  so  to  do  to  the  buyer.  If  the  seller  elects  this  course  rather  than 
that  provided  for  in  the  preceding  section,  he  can  maintain  no  action 
against  the  buyer,  for  his  failure  to  accept  the  goods. 

Remedies  of  the  Buyer. 

Sbc.  66. — [Action  for  Converting  or  Detaining  Goods,]  Where  the 
property  in  the  goods  has  passed  to  the  buver  and  the  seller  wrongfully 
neglects  or  refuses  to  deliver  the  goods,  the  buyer  may  maintain  any 
action  allowed  by  law  to  the  owner  of  goods  of  similar  kind  when  wrong- 
fully converted  or  withheld. 

Sbc.  b7,— [Action  for  FaHing  to  Deliver  Goods.}  (1)  Where  the 
property  in  iLe  goods  has  not  paas^  to  the  buyer,  and  the  seller  wron^ 
lulb^  neglects  or  refuses  to  deliver  the  goods,  the  buyer  msiy  maintam 
an  action  against  the  seller  for  damages  for  non-delivery. 

(2)  The  measure  of  damages  is  the  loss  directly  and  naturally  resulting 
in  the  ordinary  course  of  events,  from  the  seller's  breach  of  contract. 

(3)  Where  there  is  an  available  market  for  the  goods  in  question,  the 
measure  of  damages,  in  the  absence  of  special  circumstances  showing 


V 


312  BEPORT  OP   COMMITTEE  ON 

proximate  damages  of  a  different  amount,  is  the  difference  between  the 
contract  price  and  the  market  or  current  price  of  the  goods  at  the  time 
or  times  when  they  ought  to  have  been  dehvered,  or,  if  no  time  was  fixed, 
then  at  the  time  of  the  refusal  to  deliver. 

Sec.  58.— [Specific  PerformanceJ]  Where  the  seller  has  broken  a  con- 
tract to  deliver  specific  or  ascertained  goods,  a  court  having  the  powers 
of  a  court  of  equity  may,  if  it  thinks  fit,  on  the  application  of  the  buyer, 
by  its  judgment  or  decree  direct  that  the  contract  shall  be  performed 
specifically,  without  giving  the  seller  the  option  of  retaining  the  goods  on 
payment  of  damages.  The  judgment  or  decree  may  be  unconditional, 
or  upon  such  terms  and  conditions  as  to  damages,  payment  of  the  price 
and  otherwise,  as  to  the  court  may  seem  just. 

Sbc.  59,— [Remedies  for  Breach  of  Warranty.l  (1)  Where  there  is  a 
breach  of  warranty,  by  the  seller,  the  buyer  may,  at  his  election — 

(a)  Accept  or  keep  the  goods  and  set  up  against  the  seller,  the  breach 
of  warranty  by  way  of  recoupment  in  diminution  or  extinction  of  the 
price ; 

(b)  Accept  or  keep  the  goods  and  maintain  an  action  against  the  seller 
for  damages  for  the  breach  of  warranty; 

(c)  Refuse  to  accept  the  goods,  if  the  property  therein  has  not  passed, 
and  maintain  an  action  against  the  seller  for  damages  for  the  breach  of 
warranty ; 

(d)  Rescind  the  contract  to  sell  or  the  sale  and  refuse  to  receive  the 
goods,  or  if  the  goods  have  already  been  received,  return  them  or  offer  to 
return  them  to  the  seller,  and  recover  the  price  or  any  part  thereof  which 
has  been  paid. 

(2)  When  the  buyer  has  claimed  and  been  sranted  a  remedy  in  any 
one  of  these  ways,  no  other  remedy  can  thereafter  be  granted. 

(3)  Where  the  goods  have  been  delivered  to  the  buyer,  he  cannot 
rescind  the  sale  if  he  knew  of  the  breach  of  warranty  when  he  accepted 
the  goods,  or  if  he  fails  to  notify  the  seller  within  a  reasonable  time  of 
the  election  to  rescind,  or  if  he  fails  to  return  or  to  offer  to  return  the 
goods  to  the  seller  in  substantially  as  good  condition  as  they  were  in  at 
the  time  the  property  was  transferred  to  the  buyer.  But  if  deterioration 
or  injury  of  the  goods  is  due  to  the  breach  of  warranty,  such  deterioration 
or  injury  shall  not  prevent  the  buyer  from  returning  or  offering  to  return 
the  goods  to  the  seller  and  rescincQng  the  sale. 

(4)  Where  the  buyer  is  entitled  to  rescind  the  sale  and  elects  to  do  so, 
the  buyer  shall  cease  to  be  liable  for  the  price  upon  returning  or  offering 
to  return  the  goods.  If  the  price  or  any  part  thereof  has  luready  been 
paid,  the  seller  shall  be  ^able  to  repay  so  much  thereof  as  has  been  paid, 
concurrently  with  the  return  of  the  goods,  or  immediately  after  an  offer 
to  return  the  goods  in  exchange  for  repayment  of  the  price. 

(5)  Where  die  buyer  is  entitled  to  rescind  the  sale  and  elects  to  do  so, 
if  the  seller  refuses  to  accept  an  offer  of  the  buyer  to  return  the  goods, 
the  buyer  shall  thereafter  be  deemed  to  hold  the  goods  as  bailee  for  the 
seller,  but  subject  to  a  lien  to  secure  the  repa3rment  of  any  portion  of 
the  price  which  has  been  paid,  and  with  the  remedies  for  the  enforcement 
of  such  lien  allowed  to  an  unpaid  seller  by  Section  44. 

(0)  The  measure  of  damages  for  breach  of  warranty  is  the  loss  directly 
and  naturally  resulting,  in  the  ordinary  course  of  events,  from  the  breach 
of  warranty. 

(7)  In  the  case  of  breach  of  warranty  of  quality,  such  loss,  in  the 
absence  of  special  circumstances  showing  proximate  damage  of  a  different 
amount,  is  the  difference  between  the  value  of  the  goods  at  the  time  of 
delivery  to  the  buyer  and  the  value  they  would  have  had  if  they  had 
answered  to  the  warrant/. 


COMKERGE>  TRADE  AND  COMMERCIAL  LAW.  313 

Sbc.  60. — [Interest  and  Special  DamagesJl  Nothing  in  this  act  shall 
affect  the  right  of  the  buyer  or  the  seller  to  recover  intereet  or  special 
damages  in  any  case  where  by  law  interest  or  special  damages  may  be 
recoverable,  or  to  recover  money  paid  where  the  consideration  for  the 
payment  of  it  has  failed. 

PART  VI. 

Intebfbbtation. 

Sec.  61.-— [Variaa'on  of  Implied  Obligations.!  Where  any  right,  duty 
or  liability  would  arise  under  a  contract  to  sell  or  a  sale  by  implication 
of  law,  it  may  be  negatived  or  varied  by  express  agreement  or  by  the 
course  of  d^iiing  between  the  parties,  or  by  custom,  if  the  custom  be 
such  as  to  bind  both  parties  to  the  contract  or  the  sale. 

Sbc.  ii2.-^lRights  May  be  Enforced  by  Actton."]  Where  any  right, 
duty  or  liability  is  declared  by  this  act,  it  may,  unless  otherwise  by  this 
act  provided,  be  enforced  by  action. 

Sbc.  eZ.-^lRule  for  Cases  Not  Provided  for  by  this  Act.l  In  apy  case 
not  provided  for  in  this  act,  the  rules  of  law  and  equity,  including  the 
law  merchant,  and  in  particular  the  rules  relating  to  the  law  of  principal 
and  agent  and  to  the  effect  of  fraud,  misrepresentation,  duress  or  coercion, 
mistake,  bankruptcy,  or  other  invalidating  cause,  shall  continue  to  apply 
to  contracts  to  sell  and  to  sales  of  goods. 

Sbc.  64. — [Interpretation  Shall  Give  Effect  to  Purpose  of  Unity,']  This 
act  shall  be  so  interpreted  and  construed  as  to  effectuate  its  general 
purpose  to  unify  the  law  of  sales  and  contracts  to  sell  in  commerce 
among  the  states  and  with  foreign  nations. 

Sec.  65.— [ProvmoTW  Not  Applicable  to  Mortgages,1  The  provisions 
of  this  act  relating  to  contracts  to  sell  and  to  sales  do  not  apply,  unless 
so  stated,  to  any  transaction  in  the  form  of  a  contract  to  sell  or  a  sale 
which  is  intended  to  operate  by  way  of  mortgage,  pledge,  charge,  or  other 
security. 

Sec.  e6.— [Definitions.'}  (1)  In  this  act  unless  the  context  or  subject 
matter  otherwise  requires — 

"  Action  "  includes  counterclaim,  set-off  and  suit  in  equity. 

"Buyer"  means  a  person  who  buys  or  agrees  to  buy  goods  or  any 
legal  successor  in  interest  o^such  person. 

"Defendant''  includes  a  plaintiff  against  whom  a  right  of  set-off  or 
counterclaim  is  asserted. 

"Delivery"  means  voluntary  transfer  of  possession  from  one  person 
to  another. 

"  Divisible  contract  to  sell  or  sale  "  means  a  contract  to  sell  or  a  "sale 
in  which  by  its  terms  the  price  for  a  portion  or  portions  of  the  goods  less 
than  the  whole  is  fixed  or  ascertainable  by  computation. 

"  Document  of  title  to  goods  "  includes  any  bill  of  lading,  dock  warrant, 
warehouse  receipt  or  order  for  the  delivery  of  ^oods,  or  any  other  docu- 
ment used  in  the  ordinary  course  of  business  m  the  sale  or  transfer  of 
goods,  as  proof  of  the  possession  or  control  of  the  goods,  or  authorizing  or 
purporting  to  authorize  the  possessor  of  the  document  to  trfmsfer  or 
receive,  either  by  indorsement,  or  by  delivery,  goods  represented  by 
such  document. 

A  document  of  title  in  which  it  is  stated  that  the  goods  referred  to 
therein  will  be  delivered  by  a  bailee  stated  to  be  in  possession  of  them  to 
the  bearer,  or  to  the  order  of  any  person  named  in  such  document  is  a 
negotiable  document  of  title. 

"  Fault "  means  wrongful  act  or  default. 


314  REPORT  OP   COMMITTEE  ON 

"  Fungible  goods  "  means  gcx>ds  of  which  any  unit  is  from  its  nature 
or  by  mercantile  usage  treated  as  the  equivalent  of  any  other  unit. 

"  Future  goods  "  means  goods  to  be  manufactured  or  acquired  by  the 
seller  after  the  making  of  the  contract  of  sale. 

"  Goods  "  include  all  chattels  personal  other  than  things  in  action  and 
money.  The  term  includes  emblements,  industrial  erowing  crops,  and 
things  attached  to  or  forming  part  of  the  land  which  are  agreea  to  be 
severed  before  sale  or  under  the  contract  of  sale. 

**  Order ''  in  sections  of  this  act  relatihg  to  documents  of  title  means 
an  order  by  indorsement  on  the  document. 

''  Person  "  includes  a  corporation  or  partnership  or  two  or  more  persons 
having  a  joint  or  common  interest. 

"  Plaintiff  "  includes  defendant  asserting  a  right  of  set-off  or  counter- 
claim. 

"  Property  "  means  the  general  property  in  goods,  and  not  merely  a 
special  property. 

"  Purchaser  "  includes  mortgagee  and  pledgee. 

''  Purchases  "  includes  taking  as  a  mortgagee  or  as  a  pledgee. 

"  Quality  of  goods  "  includes  their  state  or  condition. 

''  Sale  "  includes  a  bargain  and  sale  as  well  as  a  sale  and  delivery. 

*'  Seller  "  means  a  person  who  sells  or  agrees  to  sell  goods,  or  any  legal 
successor  in  interest  of  such  person. 

''  Specific  goods  "  means  goods  identified  and  agreed  upon  at  the  time 
a  contract  to  sell  or  sale  is  made. 

''State "  includes  any  territory,  district,  insular  possession,  or  isthmian 
possession. 

"  Value  "  is  any  consideration  suj£cient  to  support  a  simple  contract. 
An  antecedent  or  pre-existing  claim,  whether  for  money  or  not,  consti- 
tutes value  where  goods  or  documents  of  titles  are  taken  either  in  satis- 
faction thereof  or  as  security  therefor. 

(2)  A  thing  is  done  "  in  good  faith  "  within  the  meaning  of  this  act 
when  it  is  in  fact  done  honestly,  whether  it  is  done  neghgently  or  not. 

(3)  A  person  is  insolvent  within  the  meaning  of  this  act  who  either 
has  ceased  to  pay  his  debts  in  the  ordinary  course  of  business  or  cannot 
pay  his  debts  as  th^  become  due,  whether  he  has  committed  an  act  of 
bankruptcy  or  not,  and  whether  he  is  insolvent  within  the  meaning  of 
the  federal  bankruptcy  law  or  not. 

(4)  Goods  are  in  a  "  deliverable  state  "  wi/iiin  the  meanins  of  this  act 
when  they  are  in  such  a  state  that  the  buyer  would,  under  me  contract, 
be  bound  to  take  delivery  of  them. 

Sbo.  67. — [Act  Not  Applicable  to  Antecedent  Transactions. 1  The  pro- 
visions of  this  act  do  not  apply  to  sales  or  contracts  to  sell  entered  mto 
or  based  on  offers  made  prior  to  the  date  when  this  act  takes  effect. 

Sec.  68. — [//  Parts  of  Act  are  Unconstitutional,  Other  Parts  Stand.] 
The  provisions  and  each  part  thereof  and  the  sections  and  each  part 
thereof  of  this  act  are  independent  and  several,  and  the  declaring  of  any 
provision  or  part  thereof  or  provisions  or  part  thereof,  or  section  or  part 
thereof  or  sections  or  part  thereof,  unconstitutional,  ^all  not  impair  or 
render  unconstitutional  any  other  provision  or  part  thereof  or  section  or 
part  thereof. 

Sbc.  69. — [Inconsistent  Legislation  Repealed."]  All  acts  or  parts  of  acts 
inconsistent  with  this  act  are  hereby  repealed. 

Sbsc.  70.— [Time  When  the  Act  Takes  Effect.]  This  act  shall  take  effect 
on  the  first  day  of  January  next  after  its  passage. 

Sbc.  71. — [Name  of  Act.]  This  act  may  be  cited  as  the  Federal  Sales 
Act. 


COMMERCE,  TRADE  AND  COMMERCIAL  LAW.  315 


APPENDIX  B, 

REVISED  DRAFT  OP  UNITED  STATES 
ARBITRATION  ACT 

As   APPROYEa)  BY  THE  COMMITTEE  ON  COMMERCE,  TrADE  AND 

Commercial  Law,  American  Bar 
Association  (1922) 

A  BILL 

To  MaKB  VaUD  and  EnFORGBABLB  WbITTBN  PbOVISIONS  OB  AOBBBMBNTS 

FOB  Abbitration  OF  DiapuTsa  Abising  Ottt  of  Contbacts,  Mabitimb 

TbANBACTIONB  OB  CoMMERCB  AmONQ  THB  StATBS  OB  T&BBTrOBIBS  OB 
WITH  FOBBIQN  NATIONS. 

Be  U  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled: 

Section  1.  "  Maritime  transactions/'  as  herein  defined  means  charter 
parties,  bills  of  lading  of  water  carriers,  agreements  relating  to  wharfage, 
supph'es  furnished  vessels  or  repairs  to  vessels,  seamen's  wages,  collisions, 
or  any  other  matters  in  foreign  or  interstate  commerce  whidi,  if  the  sub- 
ject of  controversy,  would  be  embrac«i  within  admiralty  jurisdiction; 

commerce"  as  herein  defined  means  commerce  among  tiie  several 
states  or  with  foreign  nations,  or  in  any  territory  of  the  United  States 
or  in  the  District  of  Columbia,  or  between  any  such  territory  and 
another,  or  between  any  such  territory  and  any  state  or  foreign  nation, 
or  between  the  District  of  Columbia  and  any  state  or  territory  or 
foreign  nation. 

Sbc.  2.  A  written  provision  in  any  contract  or  maritime  transaction  or 
transaction  involving  commerce  to  settle  by  arbitration  a  controversy 
thereafter  arising  between  the  parties  out  of  such  contract  or  transaction 
or  the  refusal  to  perform  the  whole  or  any  part  thereof  or  an  agreement 
in  writing  to  submit  to  arbitration  an  existing  controversy  arising  out  of 
such  a  contract,  transaction  or  refusal  shall  be  valid,  enforceable  and 
irrevocable,  save  upon  such  grounds  as  exist  at  law  or  in  equity  for  the 
revocation  of  any  contract. 

Sbc.  3.  If  any  suit  or  proceeding  be  brought  in  any  of  the  courts  of 
the  United  States  upon  $ny  issue  referable  to  arbitration  under  an 
agreement  in  writing,  the  court  in  which  such  suit  is  pending,  upon  being 
satisfied  that  the  issue  involved  in  such  suit  or  proceeding  is  referable 
to  arbitration  under  such  an  agreement,  shall  stay  the  trial  of  the  action 
until  such  arbitration  has  been  had  in  accordance  with  the  terms  of  the 
agreement  providing  tiie  applicant  for  the  stay  is  not  in  default  in  pro- 
ceeding vntn  such  arbitration. 

Sec.  4.  A  party  aggrieved  by  the  failure,  neglect  or  refusal  of  another 
to  perform  under  an  agreement  for  arbitration  which  is  in  writing  may 
petition  any  court  of  the  United  States  which,  save  for  such  afip-eement, 
would  have  jurisdiction  under  the  Judicial  Code  at  law,  in  equity  or  in 
admiralty  of  the  subject  matter  of  a  suit  arising  out  of  the  controverQr 
between  the  parties,  for  an  order  directing  that  such  arbitration  proceed 
in  the  manner  provided  for  in  such  agreement.  Five  days'  notice  in 
writing  of  such  application  shall  be  served  upon  the  party  in  default. 
Service  thereof  shall  be  made  in  the  nianner  provided  by  law  for  the 
service  of  summary  process  in  the  jurisdiction  in  which  the  proceeding  is 
brought.   The  court  shall  hear  the  parties,  and  upon  being  satisfied  that 


316  REPORT  OP   COMMITTEE  ON  ^ 

the  making  of  the  agreement  for  arbitration  or  the  failure  to  comply 
therewith  is  not  in  issue,  the  court  shall  make  an  order  directing  the 
parties  to  proceed  to  arbitration  in  accordance  with  the  terms  of  the 
agreement.  If  the  making  of  the  agreement  or  the  default  be  in  issue, 
the  court  shall  proceed  summarilv  to  the  trial  thereof.  If  no  jury  trial 
be  demanded  by  the  party  in  default,  or  if  the  matter  in  dispute  is 
within  admiralty  jurisdiction,  the  court  shall  hear  and  determine  such 
issue.  Where  such  an  issue  is  raised,  the  party  alleged  to  be  in  default 
may,  except  in  cases  of  admiralty^  on  or  before  the  return  day  of  the 
notice  of  application,  demand  a  jury  trial  of  such  issue,  and  if  such 
demand  be  made,  the  court  shall  make  an  order  referring  the  issue  or 
issues  to  a  jury  in  the  manner  provided  by  law  for  referring  to  a  jury 
issues  in  an  equity  action  or  may  specially  call  a  jury  for  that  purpose. 
If  the  jury  find  that  no  ag[reement  in  writing  for  arbitration  was  made 
or  that  there  is  no  default  m  proceeding  thereunder  the  proceeding  shall 
be  dismissed.  If  the  jury  find  that  an  agreement  for  arbitration  was 
made  in  writing  and  that  there  is  a  default  in  proceeding  thereunder,  the 
court  shall  make  an  order  summarily  directing  the  parties  to  proceed 
with  the  arbitration  in  accordance  with  the  terms  thereof. 

Sec.  5.  If  in  the  agreement  provision  be  made  for  a  method  of  naming 
or  appointing  an  arbitrator  or  arbitrators  or  an  iuni)ire,  such  method 
shall  be  followed ;  but  if  no  method  be  provided  therein,  or  if  a  method 
be  provided  and  any  party  thereto  shall  fail  to  avail  himself  of  such 
metnod,  or  for  any  other  reason  there  shall  be  a  lapse  in  the  naming  of 
an  arbitrator  or  arbitrators  or  umpire,  or  in  filhng  a  vacancy,  theki, 
upon  application  by  either  party  to  the  controversy,  the  court  shall 
designate  and  appoint  an  arbitrator  or  arbitrators  or  umpire,  as  the  case 
may  require,  wno  shall  act  under  the  said  agreement  with  the  same 
force  and  effect  as  if  he  or  they  had  been  specifically  named  therein ;  and 
imlesB  otherwise  provided  the  arbitration  shall  be  by  a  single  arbitrator. 

Sec.  6.  Any  application  to  the  court  hereunder  shall  be  made  and 
heard  in  the  manner  provided  b^  law  for  the  making  and  hearing  of 
motions,  except  as  otherwise  herein  expressly  provided. 

Sec.  7.  The  arbitrators  selected  either  as  prescribed  in  this  act  or 
otherwise,  or  a  majority  of  them,  may  summon  in  writing  any  person 
to  attend  before  them  or  any  of  them  as  a  witness  and  in  a  proper  case 
to  bring  with  him  or  them  a  book  or  paper.  The  fees  for  such  atten- 
dance shall  be  the  same  as  the  fees  of  witnesses  before  masters  of  tiie 
United  States  courts.  Said  summons  shall  isBue  in  the  name  of  the 
arbitrator  or  arbitrators,  or  a  majority  of  them,  and  shall  be  signed  by 
the  arbitrators,  or  a  majority  of  them,  and  shall  be  directed  to  the  said 
person  and  shall  be  served  in  the  same  manner  as  subpoenas  to  testify 
oefore  the  coiul; ;  if  any  person  or  persons  so  summoned  to  testify  shall 
refuse  or  neglect  to  obey  said  summons,  upon  petition  the  United  States 
Court  in  and  for  the  district  in  which  such  arbitrators,  or  a  majority 
of  them,  are  sitting  may  compel  the  attendance  of  such  person  or  persons 
before  said  arbitrator  or  arbitrators,  or  punish  said  person  or  persons  for 
contempt  in  the  same  manner  now  provided  for  the  attendance  of  wit- 
nesses or  the  punishment  of  them  in  the  courts  of  the  United  States. 

Sec.  8.  If  the  basis  of  jurisdiction  be  diversity  of  citizenship  between 
citizens  of  several  states  or  one  of  the  parties  be  a  foreign  state,  citiien 
or  subject,  the  district  court  or  courts  which  would  have  jurisdiction  if 
the  matter  in  controvert  exceeded,  exclusive  of  interest  and  costs,  the 
sum  or  value  of  three  thousand  dollars,  shall  have  jurisdiction  to  pro- 
ceed hereunder  notwithstanding  the  amount  in  controvert  is  unascer- 
tained or  is  to  be  determined  by  arbitration. 

Sec.  9.  If  the  baais  of  jurisdiction  be  a  cause  of  action  otherwise 
justiciable  in  admiralty,  then,  notwithstanding  anything  herein  to  the 


COMMERCE,  TBADB.  AND  COMMERCIAL  LAW.  317 

contraiy,  the  party  claiming  to  be  aggrieved  may  begin  his  proceeding 
hereunder  by  libel  and  seizure  of  the  vessel  or  other  property  of  the 
other  party  according  to  the  usual  course  of  admiralty  proceedings, 
and  the  court  shall  then  have  jurisdiction  to  direct  the  parties  to 
proceed  with  the  arbitration  and  shall  retain  jurisdiction  to  enter  its 
decree  upon  the  award. 

Sbo.  10.  If  the  parties  in  their  agreement  have  agreed  that  a 
judgment  of  the  court  shall  be  entered  upon  the  award  made  pursuant  to 
the  arbitration,  and  shall  specify  the  court,  then  at  any  time  within  one 
year  after  the  award  is  made,  which  award  must  be  in  writing  and 
acknowledged  or  proved  in  like  manner  as  a  deed  for  the  conveyance 
of  real  estate,  and  delivered  to  one  of  the  parties  or  his  attorney,  any 
party  to  the  arbitration  may  apply  to  the  court  so  specified  for  an 
order  confirming  the  award  and  thereupon  the  court  must  grant  such  an 
order,  unless  the  award  is  vacated,  modfied  or  corrected  as  prescribed  in 
the  next  two  sections.  If  no  court  is  specified  in  the  agreement  of  the 
parties,  then  such  application  may  be  made  to  the  United  States  court 
m  and  for  the  district  within  which  such  award  was  made.  Notice  of 
the  motion  must  be  served  upon  the  adverse  party  or  his  attorney  as 
prescribed  by  law  for  service  of  notice  of  motion  in  an  action  in  the  same 
court. 

Sec.  11.  In  either  of  the  following  cases,  the  United  States  court  in 
and  for  the  district  wherein  the  award  was  made  may  make  an  order 
Vacating  the  award,  upon  the  application  of  any  party  to  the  arbitration: 

(a)  Where  the  award  was  procured  by  corruption,  fraud  or  undue 
means. 

(b)  Where  there  was  evident  partiality  or  corruption  in  the  arbitrators, 
or  either  of  them. 

(c)  Where  the  arbitrators  were  guilty  of  misconduct,  in  refusing  to 
postpone  the  hearing,  upon  sufficient  cause  shown,  or  in  refusing  to  hear 
evidence,  pertinent  ana  material  to  the  controversy;  or  of  any  other 
misbehavior,  by  which  the  rights  of  any  party  have  been  prejudiced. 

(d)  Where  the  arbitrators  exceeded  their  powers,  or  so  imperfectly 
executed  them,  that  a  mutual,  final,  and  definite  award,  iipon  the  subject 
matter  submitted,  was  not  made. 

Where  an  award  is  vacated  and  the  time,  within  which  the  agreement 
required  the  award  to  be  made,  has  not  expired,  the  court  may  in  its 
discretion  direct  a  rehearing  by  the  arbitrators. 

Sec.  12.  In  either  of  the  following  cases*  the  United  States  Comt  in 
and  for  the  district  wherein  the  award  was  made  may  make  an  order 
modifying  or  correcting  the  award,  upon  the  application  of  any  party 
to  the  arbitration: 

(a)  Where  there  was  an  evident  miscalculation  of  figures,  or  an 
evident  mistake  in  the  description  of  any  person,  thing  or  property, 
referred  to  in  the  award. 

(b)  Where  the  arbitrators  have  awarded  upon  a  matter  not  submitted 
to  them,  unless  it  is  a  matter  not  affecting  the  merits  of  the  decision 
upon  the  matters  submitted. 

(c)  Where  the  award  is  imperfect  in  a  matter  of  form,  not  affecting 
the  merits  of  the  controvert. 

The  order  may  modify  and  correct  the  award,  so  a3  to  effect  the 
intent  thereof,  and  promote  justice  between  the  parties. 

Sec.  13.  Notice  of  a  motion  to  vacate,  modify  or  correct  an  award, 
must  be  served  upon  the  adverse  party  or  his  attorney,  within  three 
months  after  the  award  is  filed  or  delivered  as  prescribed  by  law  for 
service  of  notice  of  a  motion  in  an  action.  For  the  purposes  of  the  motion 
any  judge  who  might  make  an  order  to  stay  the  proceedings,  in  an  action 
brought  in  the  same  court,  may  make  an  order  to  be  served  with  the 


318  REPORT  OF  COM^CITTBE  ON 

notice  of  motion,  staying  the  proceedings  of  the  advene  party  to  enforce 
the  award. 

Sec.  14.  Upon  the  granting  of  an  order,  confirming,  modifying  or 
correcting  an  award,  judgment  may  be  entered  in  conformity  therewith 
but  no  exceptions  shall  oe  taken,  but  an  appeal  may  be  taken  from 
such  order  or  judgment  as  hereinafter  set  forth. 

Sec.  15.  The  party  moving  for  an  order  confirming,  modifying  or  cor- 
recting an  award  shall,  at  the  time  such  order  is  filed  with  the  clerk  for 
the  entry  of  judgment  thereon,  also  file  the  following  papers  with  the 
clerk: 

(a)  The  agreement;  the  selection,  or  appointment,  if  any,  of  an 
additional  arbitrator,  or  umpire ;  and  each  written  extension  of  the  time, 
if  any,  within  which  to  make  the  award. 

(b)  The  award. 

(c)  Each  notice,  affidavit  or  other  paper,  used  upon  an  application  to 
confirm,  modify,  or  correct  the  award,  and  a  copy  of  each  order  of  the 
court,  upon  such  an  application. 

The  judgment  may  be  docketed,  as  if,  it  was  rendered  in  an  action. 

Sec.  16.  The  judgment  so  entered  has  the  same  force  and  effect,  in 
all  respects,  as,  and  is  subject  to  all  the  provisions  of  law  relating  to 
a  judgment  in  an  action;  and  it  may  be  enforced,  as  if  it  had  been 
rendered  in  an  action  in  the  court  in  which  it  is  entered. 

Sec.  17.  An  appeal  may  be  taken  from  an  order  vacating  an  award,  or 
from  a  judgment  entered  upon  an  award,  as  from  an  order  or  judgment 
in  an  action. 

Sec.  18.  This  act  may  be  referred  to  as  "  The  United  States  Arbitra- 
tion Act." 

Sec.  19.  All  acts  and  parts  of  acts  inconsistent  with  this  act  are  hereby 
repealed,  and  this  act  shall  take  e£fect  on  and  after  the  first  day  of 
January  next  after  its  enactment ;  but  shall  not  apply  to  contracts  made 
prior  to  the  taking  e£fect  of  this  act. 


APPENDIX  C. 

PROPOSED  UNIFORM  ACT  FOR  COMMERCIAL 

ARBITRATION 

As  Approved  by  thb  Committee  on  Commerce^  Trade  and 

Commercial  Law  of  the  American  Bar 

aj3s00iati0n  (1922) 

AN  ACT 
Concerning  Arbitration  and  Awards. 
Be  it  enacted  by  the  Senate  and  General  Assembly  of  the  Statg  of 


1.  A  provision  in  a  written  contract  to  settle  by  arbitration  a  con- 
troversy thereafter  arising  out  of  the  contract  or  the  refusal  to  per- 
form the  whole  or  any  part  thereof  or  an  agreement  in  writing  to  sub- 
mit an  existing  controvert^  to  arbitration  pursuant  to  section  two 
hereof^  shall  be  valid,  enforceable  and  irrevocable,  save  upon  such 
grounds  as  exist  at  law  or  in  equity  for  the  revocation  of  any  contract. 

2.  Save  in  the  case  of  an  infant,  or  a  person  incompetent  to  manage 
his  affairs,  two  or  more  persons  may  agree  in  writing  to  submit,  to  the 


OOMMEROE,  TBADB  AND   GOMKBBCIAL  LAW.  319 

arbitration  of  one  or  more  arbitrators,  any  controversy  existing  between 
them  at.  the  time  of  the  agreement  to  submit  which  arises  out  of  a 
contract,  or  the  refusal  to  perform  the  whole  or  any  part  thereof,  or 
the  violation  of  any  other  obligation.  They  ma^  also  so  agree  that  a 
judgment  of  a  court  of  record,  specified  in  the  wnting,  shall  be  rendered 
upon  the  award,  made  pursuant  to  the  submission.  If  the  court  is  thus 
specified,  th^y  may  also  specify  the  county  in  which  the  judgment  shall 
be  entered.  If  the  writing  does  not  specify  the  county,  the  judgment 
may  be  entered  in  any  county. 

3.  A  party  aggrieved  by  the  failure,  neglect  or  refusal  of  another  to 
perform  under  an  agreement  in  writing  providing  for  arbitration,  may 
petition  the Court,  for  an  order  directing  that  such  arbitra- 
tion proceed  in  the  manner  provided  for  in  such  agreement.  Five  days' 
notice  in  writing  of  such  application  shall  be  served  upon  the  party  in 
default.  Service  thereof  shall  be  made  in  the  manner  provided  by  law 
for  service  of  a  summons.  The  court  shall  hear  tne  parties,  and 
upon  being  satisfied  that  the  making  of  the  agreement  or  the  failure 
to  comply  therewith  is  not  in  issue,  the  court  hearing  such  application, 
shall  make  an  order  directing  the  parties  to  proceed  to  arbitration  in 
accordance  with  the  terms  of  the  agreement.  If  the  making  of  the 
agreement  or  the  default  be  in  issue,  the  court,  or  the  justice  thereof, 
shall  proceed  summarily  to  the  trial  thereof.  If  no  jury  trial  be 
demanded  by  the  party  in  default  the  court  shall  hear  and  determine 
such  issue.  Where  such  an  issue  is  raised,  the  party  alleged  to  be  in 
default  ma:^,  on  or  before  the  return  day  of  the  notice  of  application, 
demand  a  jury  trial  of  such  issue,  and  if  such  demand  be  made,  the 
court  shall  niake  an  order  referring  the  issue  or  issues  to  a  jury 
in  the  manner  provided  by  law  for  referring  to  a  jury  issues  in  an 
equity  action,  or  may  specially  call  a  jui^  for  that  purpose.  If  the  jury 
find  that  no  a^eement  in  writing  providing  for  arbitration  was  made 
or  that  there  is  no  default  in  proceeding  thereunder,  the  proceeding 
shall  be  dismissed.  If  the  jury  find  that  a  written  provision  for  arbitra- 
tion was  made  and  that  there  is  a  default  in  proceeding  thereunder,  the 
court  shall  make  an  order  summarily  directing  the  parties  to  proceed 
with  the  arbitration  in  accordance  with  the  terms  thereof. 

4.  If,  in  the  agreement,  provision  be  made  for  a  method  of  naming 
or  appointing  an  arbitrator  or  arbitrators  or  an  umpire,  sudi  method 
shall  be  followed,  but  if  no  method  be  provided  therein,  or  if  a  method 
be  provided  and  any  party  thereto  shall  fail  to  avail  himself  of  such 
method,  or  for  any  other  reason  there  shall  be  a  lapse  in  the  naming  of 
an  arbitrator  or  arbitrators  or  umpire,  or  in  filling  a  vacancy,  then, 

upon  application  by  either  party  to  the  controversy,  the   

Court  shall  designate  and  appoint  an  arbitrator  or  arbitrators,  or  umpire, 
as  the  case  may  require,  who  shall  act  under  the  said  agreement  with 
the  same  force  and  effect  as  if  he  or  they  had  been  specifically  named 
therein;  and  unless  otherwise  provided,  the  arbitration  shall  be  by  a 
single  arbitrator. 

5.  If  any  suit  or  proceeding  be  brought  upon  any  issue  referable  to 

arbitration  under  an  agreement  in  writing;  the Court,  upon 

being  satisfied  that  the  issue  involved  in  such  suit  or  proceeding  is 
referable  to  arbitration  under  such  an  agreement  in  writing,  shall  stay  the 
trial  of  the  action  until  such  arbitration  has  been  had  in  accordance 
with  the  terms  of  the  agreement;  provided  the  applicant  for  the  stay  is 
not  in  default  in  proceeding  with  such  arbitration. 

6.  Any  application  to  the  court  hereunder  shall  be  made  and  heard 
in  a  summary  way  in  the  manner  provided  by  law  for  the  making  and 
hearing  of  motions,  except  as  otherwise  herein  expressly  provided. 

11 


320  REPORT  OF   OOMMITTBB  ON  • 

7.  The  arbitrators  selected  either  as  prescribed  in  this  act,  or  other- 
wise, or  a  majority  of  them,  may  summon  in  writing  any  person  to 
attend  before  them  or  any  of  them  as  a  witness  and  in  a  proper  case  to 
bring  with  him  or  them  a  book  or  paper.  The  fees  for  such  attendance 
shall  be  the  same  as  the  fees  of  witnesses  before  auditors  or  masters  in 
this  state.  Said  summons  shall  issue  in  the  name  of  the  arbitrator  or 
arbitrators,  or  a  majority  of  them,  and  shall  be  signed  by  the  arbitrators, 
or  a  majority  of  them,  and  shall  be  directed  to  the  said  person  and  shall 
be  served  in  the  same  manner  as  subpoenas  to  testify  before  a  court  of 
record  of  this  state;  if  anv  person  or  persons  so  summoned  to  testify 
shall  refuse  or  neglect  to  obey  said  summons  upon  petition  the  Supreme 
Coiuli  may  compel  the  attendance  of  such  person  or  persons  before  said 
arbitrator  or  arbitrators,  or  punish  said  person  or  persons  for  contempt 
in  the  same  manner  now  provided  for  the  attendance  of  witnesses  or  the 
punishment  of  them  in  the Court  of  ,this  state. 

8.  At  any  time  within  one  year  after  the  award  is  made,  which  award 
must  be  in  writing  and  acknowledged  or  proved  in  like  manner  as  a  deed 
for  the  conveyance  of  real  estate,  and  delivered  to  one  of  the  parties 
or  his  attorney,  any  party  to  the  arbitration  may  apply  to  the  court, 
specified  in  the  agreement,  for  an  order  confirming  the  award;  and 
tnereupon  the  court  must  grant  such  an  order,  unless  the  award  is 
vacated,  modified,  or  corrected,  as  prescribed  in  the  next  two  sections. 
Notice  of  the  motion  must  be  served  upon  the  adverse  party,  or  his 
attomery,  as  prescribed  by  law  for  service  of  notice  of  a  motion  in  an 
action  m  the  same  court. 

0.  In  either  of  the  following  cases,  the  court  may  make  an  order 
vacating  the  award,  upon  the  application  of  any  party  to  the  arbitration : 

(a)  Where  the  award  was  procured  by  corruption,  fraud  or  undue 
means. 

(b)  Where  there  was  evident  partiality  or  corruption  in  the  arbi- 
trators, or  either  of  them. 

(c)  Where  the  arbitrators  were  guilty  of  misconduct,  in  refusing  to 
postpone  the  hearing,  upon  sufiicient  cause  shown,  or  in  refusing  to  hear 
evidence,  pertinent  ancf  material  to  the  controversy;  or  of  any  other 
misbehavior,  by  which  the  rights  of  any  party  have  been  prejudiced. 

(d)  Where  the  arbitrators  exceeded  tneir  powers,  or  so  imperfectly 
executed  them,  that  a  mutual,  final,  and  definite  award,  upon  the  subject 
matter  submitted,  was  not  made. 

Where  an  award  is  vacated  and  the  time,  within  which  the  agreement 
required  the  award  to  be  made,  has  not  expired,  the  court  may  in  its 
discretion  direct  a  rehearing  by  the  arbitrators. 

10.  In  either  of  the  following  cases,  the  court  may  make  an  order 
modifying  or  correcting  the  award,  upon  the  application  of  any  party 
to  the  aroitration : 

(a)  Where  there  was  an  evident  miscalculation  of  figures,  or  an  evident 
mistake  in  the  description  of  any  person,  thing  or  property,  referred 
to  in  the  award. 

(b)  Where  the  arbitrators  have  awarded  upon  a  matter  not  sub- 
mitted to  them,  unless  it  is  a  matter  not  affecting  the  merits  of  the 
decision  upon  the  matters  submitted. 

(c)  Where  the  award  is  imperfect  in  a  matter  of  form,  not  affecting 
the  merits  of  the  controversy. 

The  order  may  modify  and  correct  the  award,  so  as  to  effect  the  intent 
thereof,  and  promote  justice  between  the  parties. 

11.  Notice  of  a  motion  to  vacate,  modify  or  correct  an  award,  must 
be  served  upon  the  adverse  party  or  his  attorney,  within  three  months 
after  the  award  is  filed  or  delivered  as  prescribed  by  law  for  service  of 
notice  of  a  motion  in  an  action.    For  the  purposes  of  the  motion  any 


COMMEROB,  TRADE  AND  OOKICEROIAL  LAW.  321 

judge  who  might  make  an  order  to  stay  the  proceediDgs,  in  an  action 
brought  in  the  same  court,  may  make  an  order  to  be  served  with  the 
notice  of  motion,  staying  the  proceedings  of  the  adverse  party  to  enforce 
the  award. 

12.  Upon  the  granting  of  an  order,  confirming,  modifying  or  correcting 
an  award,  judgment  may  be  entered  in  conformity  therewith,  but  no 
exceptions  shall  be  taken,  but  an  appeal  may  be  taken  from  such  order  or 
judgment  as  hereinafter  set  forth. 

13.  The  party  moving  for  an  order  confirming,  modifying  or  correct- 
ing an  award  shall  at  the  time  such  order  is  filed  with  liie  clerk  for  the 
entry  of  judgment  thereon,  also  file  the  following  papers  with  the  clerk : 

(a)  The  agreement;  the  selection  or  appointment,  if  any,  of  an 
additional  arbitrator,  or  umpire;  and  each  written  extension  of  ^e 
time,  if  any,  within  which  to  make  the  award. 

(b)  The  award. 

(c)  Each  notice,  affidavit  or  other  paper,  used  upon  an  application  to 
confirm,  modify,  or  correct  the  award,  and  a  copy  of  each  order  of  the 
court,  upon  such  an  application. 

The  judgment  may  be  docketed,  as  if  it  was  rendered  in  an  action. 

14.  The  judgment  so  entered  has  the  same  force  and  effect,  in  all 
respects,  as,  and  is  subject  to  all  the  provisions  of  law  relating  to,  a 
judgment  in  an  action;  and  it  may  be  enforced,  as  if  it  had  been 
rendered  in  an  action  in  the  court  in  which  it  is  entered. 

15.  An  appeal  may  be  taken  from  an  order  vacating  an  award,  or 
from  a  judgment  entered  upon  an  award,  as  from  an  order  or  judgment 
in  an  action. 

16.  This  act  may  be  cited  as  "  The  State  Arbitration  Act." 

17.  All  acts  and  parts  of  acts  inconsistent  with  this  act  are  hereby 
repealed,  and  this  act  shall  take  effect  on  and  after  the  first  day  of 
July  next  after  its  enactment;  but  shall  not  apply  to  contracts  made 
prior  to  the  taking  effect  of  this  act. 


APPENDIX  D. 

REVISED  DRAFT  OF  TREATY  FOR  COMMERCIAL 

ARBITRATION 

As  Afprovbd  by  Committeb  on  Commerce,  Trade  and. 
C0MME901AL  Law  of  the  American  Bar 
Association  (1922) 

The  government  of  the  United  States  of  America  and  the  govern- 
ment of  being  desirous  of  facilitating  com- 
merce and  trade  between  the  two  nations  by  validating  and  making 
enforceable  agreements  for  arbitration  of  commercial  disputes  between 
the  citizens  or  subjects  of  each  of  the  high  contracting  parties,  have 
authorized  the  undersigned,  to  wit,  Herbert  Hoover,  Secretary  of  Com- 
merce of  the  United  States,  and  to  conclude 

the  following  agreement: 

ARTICLE  I. 

A  provision  in  a  written  contract  between  the  citizens,  subjects,  or 
residents  of  each  of  the  high  contracting  parties  to  settle  by  arbitration  a 


322  OOMKBRCB,   TRADE  AND  OOMMEROIAL  LAW. 

controversy  thereafter  arisinK  or  an  agreement  in  writing  to  submit  to 
arbitration  an  existing  controversy  between  such  citizens,  subjects,  or 
residents  shall  be  valid,  enforceable  and  irrevocable,  save  only  upon  such 
grounds  as  exist  at  law  or  in  equity  for  the  revocation  of  any  contract, 
and  shall  be  so  treated  by  the  courts  of  the  high  contracting  parties. 

ARTICLE  n. 

The  awards  of  any  referee,  board  or  tribunal  of  arbitration  duly  and 
regularly  made  within  the  territory  and  possessions  of  eith^  of  the  high 
contracting  parties  shall  be  entitled  in  all  the  courts  of  the  other  high 
contracting  party  to  full  faith  and  credit;  and  shall  not  be  open  to 
attack  save  upon  the  ground  of  fraud,  bad  faith,  misbehavior  or  mis- 
conduct on  the  part  of  the  referee,  board  or  tribunal  making  the  award, 
including  failure  to  receive  evidence  by  which  the  rights  of  any  party  to 
the  arbitration  have  been  seriously  prejudiced;  and  shall  not  be  open  to 
modification  except  where  there  was  an  evident  miscalculation  or  mis- 
take in  description  in  the  award. 

ARTICLE  III. 

The  high  contracting  parties  will  confer  suitable  jurisdiction  upon 
their  courts,  respectively,  to  furnish  adequate  and  appropriate  relief  in 
the  enforcement  of  arbitration  agreements  and  awards  and  will  estab* 
lish  appropriate  methods  and  machinery  for  the  performance  of  such 
agreements  and  the  enforcement  of  such  awards. 

ARTICLE  IV. 

The  citizens,  subjects  or  residents,  of  each  of  the  high  contracting 
parties  shall  enjoy  in  the  territories  and  possessions  of  the  other  the  same 
protection  as  native  citizens,  subjects,  or  residents  of  the  nation  most 
favored  in  respect  of  the  validity,  irrevocability  and  enforceability  of 
arbitration  agreements,  submissions  and  awards. 

ARTICLE  V. 

The  present  agreement  shall  be  ratified  by  the  President  of  the  United 
States  of  America,  by  and  with  the  advice  and  consent  of  the  8enate 

thereof,  and  by  v  • .  ^^^  ^*  ^^^^  become 

effective  upon  the  date  of  the  exchange  of  ratifications,  which  shall  take 
place  at  Washington  as  soon  as  possible. 

Done  in  duplicate  in  the  English  and   .« languages,  at 

Washington  this day  of one  thousand  nine  hundred 

and  twenty-two. 


REPORT 

or  THB 

COMMITTEE  ON  INTERNATIONAL  LAW. 

To  the  American  Bar  Association: 

The  members  of  the  Standing .  Committee  on  International 
Law  recognize  that  the  scope  of  their  report  is  limited  by  two 
circumstances :  firsts  that  it  is  a  committee  of  a  Bar  Association 
and  that  its  report  should  be  confined  to  questions  of  law; 
second,  that  the  Bar  Association  is  an  American  body  and  that 
the  report  should  therefore  deal  with  questions  primarily  affect- 
ing the  United  States.  It  cannot  be  limited  to  matters  which 
exclusively  concern  our  country,  for  although  international 
law  is  an  integral  part  of  the  law  of  the  United  States^  it  is 
ex  vi  termini  the  law  between  States  and  only  comes  into  play 
in  questions  affecting  States,  their  citizens  or  subjects.  The 
report  of  your  committee  must  inevitably  deal  with  matters 
affecting  foreign  nations,  but  only  those  questions  of  the  past 
year  will  be  considered  whidi  involve  the  United  States.  And 
of  these  only  the  most  important  will  be  discussed. 

They  are  in  the  judgment  of  your  committee  four  in  number : 
(1)  the  election  of  the  judges  of  the  Permanent  Court  of  Inter- 
national Justice;  (2)  the  treaties  with  Germany,  Austria  and 
Hungary  ending  the  war  of  the  United  States  with  those  Coun- 
tries; (3)  the  Washington  Conference  on  the  Limitation  of 
Armament;  Pacific  and  Far  Eastern  Questions;  (4)  the  Wash- 
ington Conference  on  the  drawn  out  dispute  between  the  sister 
American  Bepublics  of  Chile  and  Peru  on  the  ownership  of  the 
provinces  of  Tacna  and  Arica.  Each  of  these  questions  will  be 
considered — ^the  first  briefly,  the  second  and  third  at  some 
length,  the  fourth  briefly,  as  our  interest  in  the  matter  of  Tacna 
and  Arica  is  that  of  a  neighbor  rather  than  that  of  a  participant. 

I.  The  Permanent  Couet  of  International  Justice. 

Into  the  history  of  this  noble  institution  this  report  cannot 
enter.  SuflSce  it  to  say  that  it  owes  its  origin  to  a  past  president 
of  this  Association,  the  Honorable  Elihu  Boot,  who,  as  Secretary 
of  State  of  the  United  States,  instructed  the  American  delega- 
tion to  the  Second  Peace  Conference  assembled  at  The  Hague 
in  1907,  to  lay  before  that  international  gathering,  in  which 
forty-four  sovereign  States  were  represented,  a  proposal  to  form 

(323) 


324  REFOBT  OF  OOMMITTBB  ON 

an  international  court  of  justice  modeled  upon  the  Supreme 
Court  of  the  United  States.  The  proposal  was  made  by  Joseph 
H.  Ghoate,  a  past  president^  and  by  another  member  of  uie 
Association^  resulting  in  the  adoption  of  a  draft  convention 
which,  with  simdry  modifications  and  additions  forms  the  so- 
called  statute  of  the  present  Permanent  Court  adopted  by  the 
Assembly  of  the  League  of  Nations  on  December  13,  1920.  The 
judges  and  deputy  judges  of  this  august  tribunal,  respectively 
eleven  and  four  in  number,  were  elected  by  the  Council  and 
Assembly  of  the  League  on  September  6  and  7,  1921.  They  met 
informally  at  The  Hague  on  February  15,  1922,  elected  a  pres- 
ident, vice-president  and  registrar,  and  took  up  the  drafting  of 
rules  of  practice  and  procedure.  The  court  will  appropriately 
hold  its  first  formal  session  on  June  15th,  in  the  Peace  Palace 
of' The  Hague,  the  gift  of  Andrew  Carnegie,  a  citizen  of  the 
United  States,  for  the  court  is  due  to  American  initiative,  Amer- 
i'can  persistence,  American  ingenuity.  And  in  this  court  an 
American  sits,  appropriately  and  of  right. 

It  is  not  within  the  scope  of  this  report  to  describe  the  meeting 
of  the  Committee  of  Jurists  at  The  Hague  in  1920  which  drafted 
the  project  of  the  International  Court  containing  the  method  of 
appointing  the  judges  prepared  by  Mr.  Root,  and  a  provision 
vesting  the  court  with  limited  but  obligatory  jurisdiction,  within 
which  State  may  sue  State  and,  in  its  absence,  duly  invited,  obtain 
judgment  upon  the  facts  as  proved  and  the  law  applicable.  The 
project  wais  mutilated  by  the  Coimcil  and  Assembly  by  striking 
out  the  articles  on  jurisdiction,  so  that  its  jurisdiction  depends 
solely  on  the  will  of  the  litigating  parties,  the  resort  to  the 
court  is  by  the  agreement  of  both  of  the  parties,  not  upon  the 
initiative  of  one,  as  in  the  case  with  courts.  The  method  of 
selecting  the  judges  was  retained  and  it  is  due  to  this  method 
that  the  judges  have  been  chosen  and  the  court  constituted. 

As  the  judges  were  elected  since  the  last  meeting  of  the  Bar 
Association,  it  is  proper  to  dwell  for  a  moment  upon  the  method 
of  election.* 

The  Permanent  Court  of  International  Justice  shall  be  composed  of 
a  body  of  independent  judges,  elected  regardless  of  their  nationality 
from  amongst  persons  of  high  moral  character,  who  possess  the  qiialifica- 
tions  required  in  their  respective  countries  for  appointment  to  the  hijshest 
judicial  offices,  or  are  jurisconsults  of  recognised  competence  in  mter- 
national  law.    [Article  2.] 

The  Court  shall  consist  of  fifteen  members:  .eleven  judges  and  four 
deputy-judges.  The  number  of  judges  and  deputy-judges  may  here- 
after be  increased  by  the  Assembly,  upon  the  proposal  of  the  Council 
of  the  League  of  Nations,  to  a  total  of  fifteen  judges  and  six  deputy- 
judges.    [Article  3.] 


^  Statute  for  the  Permanent  Court  of  International  Justice. 


INTKRNATIONAL  LAW.  325 

The  memben  of  the  Court  shall  be  elected  by  the  Aasembly  and  by 
the  Council  from  a  list  of  persona  nominated  by  the  national  groups  in 
the  Court  of  Arbitration,  m  accordance  with  the  following  provisions. 
....  [Article  4.] 

At  least  three  months  before  the  date  of  the  election,  the  Seoretanr- 
General  of  the  League  of  Nations  shall  address  a  written  request  to  tne 
Members  of  the  Court  of  Arbitration  ....  inviting  them  to  undertake, 
within  a  given  time,  by  national  groups,  the  nomination  of  persons  in  a 
position  to  accept  the  duties  of  a  member  of  the  Court. 

No  group  may  nominate  more  than  four  persons,  not  more  than  two 
of  whom  shall  be  of  their  own  nationality.  In  no  ease  must  the  num- 
ber of  candidates  nominated  be  more  than  double  the  number  of  seats 
to  be  filled.    [Article  5.] 

Before  making  these  nominations,  each  national  group  is  recom- 
mended to  consult  its  Highest  Court  of  Justice,  its  Le^al  Faculties  and 
Schools  of  Law,  and  its  National  Academies  and  national  sections  of 
International  Academies  devoted  to  the  study  of  law.    [Article  6.] 

The  Secretary-General  of  the  League  of  Nations  shall  prepare  a  list 
in  alphabetical  order  of  all  the  persons  thus  nominated.  Save  as  pro- 
vided in  Article  12,  paragraph  2,  these  shall  be  the  only  penonB  eligible 
for  appointment. 

The  Secretary-General  shall  submit  this  list  to  the  Assembly  and  to 
the  Council.    [Article  7.] 

The  Assembly  and  the  Council  shall  proceed  independently  of  one 
another  to  elect,  firstly  the  judges,  then  tne  deputy-judges.    [Article  8.] 

At  every  election,  the  electors  shall  bear  in  mind  that  not  on^  should 
all  the  perB(»8  appointed  as  members  of  the  Court  possess  the  qualifica- 
tions required,  but  the  whole  body  also  should  represent  the  mam  forms 
of  civilization  and  the  principal  legal  ^stems  of  the  world.    [Article  0.] 

Those  candidates  who  obtain  an  absolute  majority  of  votes  in  tiie 
Assembly  and  in  the  Council  shall  be  considered  as  elected. 

In  the  event  of  more  than  one  national  of  the  same  Member  o{  the 
League  being  elected  by  the  votes  of  both  the  Assembly  and  the 
Council,  the  eldest  of  these  only  dutU  be  considered  as  elected. 
[Article  10.] 

If,  after  the  first  meeting  held  for  the  purpose  of  the  election,  one  or 
more  seats  remain  to  be  filled,  a  second  and,  if  necenaiy,  a  third  meeting 
shall  take  place.    [Article  11.] 

If,  after  the  third  meeting,  one  or  more  seats  still  remain  unfilled,  a 
joint  conference  consisting  of  six  members,  three  appointed  by  the 
Assembly,  and  three  by  the  Council,  may  be  formed,  at  any  time,  at 
the  request  of  either  the  Assembly  or  the  Council,  for  the  purpose  of 
choosing  one  name  for  each  seat  still  vacant,  to  submit  to  the  Assembly 
and  the  Council  for  their  re^ective  acceptance. 

If  the  Conference  is  imanimously  agreed  upon  any  person  who  fulfills 
the  required  conditions,  he  may  be  included  in  its  list,  even  though  he 
was  not  included  in  the  list  of  nominations  referred  to  in  Articles  4  and  5, 

If  the  joint  conference  is  satisfied  that  it  wiU  not  be  suciMSsaful  in  pro- 
curing an  election,  those  members  of  the  Court  who  have  already  been 
appointed  shall,  within  a  period  to  be  fixed  by  the  Coundl,  proceed  to 
fill  the  vacant  seats  by  selection  from  amongst  those  candidates  who 
have  obtained  votes  either  in  the  Assembly  or  in  the  CounciL 

In  the  event  of  an  equality  of  votes  amongst  the  judges,  the  eldest 
judge  shall  have  a  casting  vote.    [Article  12.] 

The  members  of  the  Court  shall  be  elected  for  nine  years. 

Th^r  may  be  re-elected. 


3^6  REPORT  OP  COMMITTEE  ON 

They  shall  continue  to  discharge  their  duties  until  their  places  have 
been  filled.  Though  replaced,  they  shall  finii^  any  cases  which  they  may 
have  begun.    [Article  13.] 

Vacancies  which  may  occur  shall  be  filled  by  the  same  method  as  that 
laid  down  ior  the  first  election.  A  member  of  the  Court  elected  to 
replace  a  member  whose  period  of  appointment  had  not  expired  will 
hold  the  appointment  for  the  remainder  of  his  predecessor's  term. 
[Article  14.] 

Deputy-judges  shall  be  called  upon  to  sit  in  the  order  laid  down  in  a 
Ust. 

This  list  shall  be  prepared  by  the  Court  and  shall  have  regard  firstly 
to  priority  of  election  and  secondly  to  age.    [Article  15.] 

The  special  chambers  provided  for  in  Articles  26  and  27  may,  with 
the  consent  of  the  parties  to  the  dispute,  sit  elsewhere  than  at  The 
Hague.    [Article  28.] 

The  council  consists  of  nine  members,  the  representatives  of 
the  large  powers  five  in  number  (four  in  fac^  owing  to  the 
refusal  of  the  United  States  to  ratify  the  Covenant  of  the 
Hieague  of  Nations),  and  four  members  elected  annually  by  the 
Assembly.  These  large  powers  preponderate  in  fact  if  not  neces- 
sarily in  theory.  In  the  Assembly,  in  which  each  member  of  the 
league  is  entitled  to  equal  representation,  the  small  nations  pre- 
ponderate. The  respective  interests  of  the  great  and  small  States 
are  thus  sought  to  be  safeguarded;  the  preponderance  of  the 
small  powers  in  the  Assembly  being  a  check  upon  the  abuse  of 
power  by  the  large  powers  in  the  council,  and  the  preponderance 
of  the  large  powers  in  the  council  being  a  check  upon  the  abuse 
of  power  by  the  small  States  in  the  Assembly. 

T^e  proposal  of  names  of  persons  by  the  members  of  the 
Permanent  Court  of  Arbitration  in  each  of  the  countries  belong- 
ing to  the  league  secures  the  recommendation  or  at  least  the 
possibility  of  such  a  recommendation  of  names  to  the  council 
and  Assembly  without  the  intervention  of  States  in  first  instance, 
reserving  the  jwlitical  intervention  of  States  for  the  election, 
which  is  and  muist  be  a  political  act. 

In  case  the  council  and  Assembly  should  fail  to  agree  a  con- 
ference committee  consisting  of  an  equal  number  of  the  council 
and  Assembly  meets  to  elect,  choosing  from  the  list  of  recom- 
mended names,  unless  the  committee  imanimously  agrees  upon 
a  person  not  included  in  the  list.  If  the  committee  fails  to  elect, 
then  the  members  of  the  court  already  chosen  select  the  remain- 
ing judge  or  judges  from  the  list  of  persons  whose  names  have 
been  voted  upon  by  the  council  or  Assembly,  and  in  case  of  a  tie 
the  eldest  judge  decides. 

In  one  instance,  at  the  first  election,  the  council  and  Assembly 
failed  to  agree  upon  a  deputy-judge.  The  Conference  Committee 
was  called  into  being  and  selected  a  third  person  from  among 
the  list  of  persons  already  voted  for. 

It  will  be  observed  that  the  principle  of  selection  is  American, 
indeed  Mr.  Root  stated  that  it  was  taken  from  the  Federal 


INTKBNATIONAL  LAW.  327 

Canvention  of  1787,  and  the  method  of  selection  by  the  Con- 
ference Committee  is  that  of  the  Senate  and  Honse  of  Repre- 
sentatives of  the  United  States,  agreeing  under  the  pressure  of 
public  opinion. 

But  there  are  two  further  traces  of  American  authorship,  one 
requiring  the  principal  legal  systems  of  the  world  to  be  con- 
sidered, so  that  the  court  should  be  an  understanding  court;  the 
other  permitting  the  appointment  of  judge  by  a  party  to  litiga- 
tion which  is  not  represented  in  the  permanent  panel  of  judges, 
thus  securing  and  maintaining  equality  at  the  very  moment  of 
interest  to  the  parties  in  litigation. 

The  elimination  of  the  provisions  on  jurisdiction  has  con- 
verted the  court  into  a.  board  of  arbitration  with  a  permanent 
personnel. 

The  importance  of  these  provisions  justifies  their  repro- 
duction :  * 

When  a  dispute  has  anaen  between  States,  and  it  has  been  found  im- 
possible to  settle  it  by  diplomatic  means,  and  no  Agreement  has.  been 
made  to  choose  another  jurisdiction,  the  partjyr  complaining  may  bring 
the  case  before  the  Court.  The  Court  shall,  nrst  of  all,  decide  whether 
the  preceding  conditions  have  been  complied  with;  if  so,  it  shall  hear 
and  determine  the  dispute  according  to  the  terms  and  within  jthe  limits 
of  the  next  Article.    [Article  33.] 

Between  States  which  are  Members  of  the  League  of  Nations,  the 
Court  shall  have  jurisdiction  (and  this  without  any  special  convention 
giving  it  jurisdiction)  to  hear  and  det  rmine  cases  of  a  legal  nature, 
concerning: 

(a)  The  interpretation  of  a  treaty : 

(b)  Any  question  of  international  i  iw; 

(c)  The  existence  of  any  fact  wh:  h,  if  established,  would  con- 
stitute a  breach  of  an  international  ol  Igation; 

(d)  The  nature  or  extent  of  reparation  to  be  made  for  the  breach 
of  an  international  obligation; 

(e)  The  interpretation  of  a  sentence  passed  by  the  Court. 

The  Court  shall  also  take  cognizance  of  all  disputes  of  any  kind  which 
may  be  submitted  to  it  by  a  general  or  particular  convention  between 
the  parties. 

In  the  event  of  a  dispute  as  to  whether  a  certain  case  comes  within 
any  of  the  categories  above  mentioned,  the  matter  shall  be  settled  by 
the  decision  of  the  Court.    [Article  34.] 

The  Court  shall,  within  the  limits  of  its  jurisdiction  as  defined  in 
Article  34,  apply  in  the  following  order: 

(1)  International  conventions,  whether  eeneral  or  particular,  es- 
tablishing rules  expressly  recognized  by  the  oontestii^^  States; 

(2)  International  custom,  as  evidence  of  a  general  practice,  which 
is  accepted  as  law; 

(3)  The  ^neral  principles  of  law  recognized  by  civilized  nations; 

(4)  Judicial  decisions  and  the  teachings  of  the  most  highly  quaU- 
fied  publicists  of  the  various  natioxis,  as  subsidiary  means  for  the 
determination  of  rules  of  law.    [Article  35.] 


The  Project  of  a  Permanent  Court  of  International  Justice  and  Reso- 
hUionM  of  the  AdvUcry  Committee  of  Jurists,  by  James  Brown  Scott 
1020. 


328  EEPOBT  OP  COMMITTBB  ON 

Whenever  one  of  the  parties  shall  not  appear  before  the  Court,  or 
shall  fail  to  defend  his  case,  the  other  party  may  call  upon  the  Court  to 
decide  in  favor  of  his  claim. 

The  Court  must,  before  doing  so,  satisfy  itself,  not  only  that  it  has 
jurisdiction  in  accordance  with  Articles  33  and  34,  but  also  that  the 
claim  is  supported  by  substantial  evidence  and  well  founded  in  fact 
and  law.    [Article  52.] 

Your  cammittee  is  of  opinion  that  these  provisions  should  be 
restored  so  that  a  war  weary  world  should  have  two  institutions 
— the  so-called  Permanent  Court  of  Arbitration  at  The  Hague, 
in  which  to  compromise  their  disputes  by  judges  of  their  own 
choice,  appointed  after  the  ^controversy  has  arisen;  the  Per- 
manent Court  of  International  Justice,  to  decide  their  disputes 
according  to  known  rules  of  law  by  judges  appointed  in  advance 
of  litigation. 

Your  committee  expresses  the  hope  that  the  United  States,  one 
of  whose  most  illustrious  jurists  lends  weight  and  dignity  to  the 
court,  may  find  a  way  to  make  use  of  the  court  and  participate 
in  its  labors,  which  the  Government  of  the  United  States  can  do 
without  becoming  party  to  the  League  of  Nations  as  such. 

Your  committee  ventures  these  suggestions  without  expressing 
an  opinion  in  favor  of  or  opposed  to  the  present  League  of 
Nations. 

II.  Trbatibs  of  Peace  Ending  thb  Wobld  Wab. 

The  peace  treaties  raise  the  question  of  the  treaty-making 
power  and  more  especially  the  branches  of  the  Qovemment  of 
the  Union  through  which  and  by  which  peace  may  be  made.  On 
one  point  there  is  no  doubt,  the  exercise  of  the  treaty  making 
power  is  by  the  Constitution  of  these  United  States  vested  in 
the  executive  branch  of  the  government  of  the  union  which  alone 
possesses  the  power  of  negotiation,  and  in  that  branch  of  the  legis- 
lative department  known  as  the  Senate,  without  whose  advice 
and  consent  no  treaty  or  bilateral  act  having  the  force  of  a  treaty 
can  bind  the  government  of  the  union,  the  states  of  the  union 
and  the  people  of  the  states  in  their  individual  and  united 
capacity.  A  treaty  of  peace  therefore  is  made  by  the  president, 
and  the  concurrence  of  two-thirds  of  the  senators  present  in  the 
Senate  at  the  time  of  voting. 

So  much  for  a  treaty.  The  question  arises,  and  it  arose  before 
and  after  the  last  meeting  of  the  Association,  whether  peace  may 
be  made  and  war  ended  by  the  United  States  in  any  other  way. 
The  majority  of  the  House  and  of  the  Senate  insisted  that  peace 
should  be  made  by  a  joint  resolution  of  these  two  bodies,  and 
passed  a  joint  resolution  to  that  effect,  a  view  which  did  not  find 
favor  with  the  late  president,  who  vetoed  a  joint  resolution  on 
May  27,  1920,  intended  to  repeal  the  joint  resolutions  '*  declar- 


INTERNATIONAL  LAW.  329 

ing  a  state  of  war  to  exist  between  the  IThited  States  and  Ger- 
many^ and  between  the  United  States  and  the  Austro-Hxingarian 
government,  and  to  declare  a  state  of  peace/' 

The  joint  resolution  of  April  6,  1917,  provided  "That  the 
state  of  war  between  the  United  States  and  the  Imperial  Ger- 
man Government  which  has  thus  been  thrust  upon  the  United 
States  is  hereby  formally  declared/' 

An  armistice  was  granted  to  Germany  at  its  request,  and  was 
signed  by  representatives  of  the  Allied  and  Associated  Powers 
on  November  11,  1918,  stopping  hostilities,  but  not  ending  the 
war. 

The  late  President  of  the  United  States  and  four  commis- 
sioners attended  the  Peace  Conference  of  Paris,  held  in  Paris 
during  the  course  of  1919,  affixed  their  signatures  on  June  28, 

1919,  in  the  Palais  of  Versailles  to  a  trealy  of  peace  which  was 
intended  to  end  the  war  as  soon  as  three  of  the  principal  allied 
and  associated  powers  had  deposited  their  ratifications  thereof 
with  the  French  (Jovemment.    This  was  done  on  January  10, 

1920,  and  war  with  Germany  ended  for  each  nation  upon  its 
deposit  of  ratifications.  The  treaty  of  Versailles  did  not  meet 
with  the  favor  of  the  Senate  of  the  United  States,  before  which 
body  it  was  duly  laid  by  the  late  President.  On  two  occasions, 
the  first  on  November  19,  1920,  the  second  on  March  19,  1921, 
two-thirds  of  the  senators  present  failed  to  concur. 

The  declaration  of  a  state  of  war  on  April  6,  1917,  was  a 
unilateral  atet  of  the  United  States,  and  the  declaration  could  be 
repealed  by  a  unilateral  act  of  a  later  date,  and  as  the  act  was  in 
this  case  a  joint  resolution,  it  could  be  repealed  as  far  as  the 
Government  of  the  United  States  was  concerned  by  a  subsequent 
joint  resolution.  Whether  it  should  be  done  or  not  was  for  the 
Congress  to  determine  in  first,  and  the  president  for  the  time 
being  in  the  second  instance.  The  then  president  vetoed  it  as 
he  had  the  constitutional  right  to  do. 

The  joint  resolution  as  a  unilateral  act  could  only  affect  the 
United  States.  It  could  not  have  the  effect  of  a  treaty,  for  a 
treaty,  in  whatever  form,  is  an  agreement,  an  act  between 
two  or  more  nations.  The  joint  resolution  would  only  repeal 
the  state  of  war  as  far  as  the  American  (Jovernment  was  con- 
cerned, and  Germany  would  not  be  affected  by  any  of  its  pro- 
visions. If  Germany  passed  a  declaration  in  identical  terms,  it 
would  only  be  an  act  of  uniform  legislation  as  far  as  Germany 
was  concerned.  It  could  be  repealed  by  Germany  at  any  time. 
Doubtless  it  would  be  wise  to  include  in  the  repealing  resolution 
an  enumeration  of  the  rights  which  this  country  intended  to 
secure  from  Germany.  This  the  Congress  did.  But  it  was  only  a 
repeal  of  a  joint  resolution  and  only  an  express  declaration  of 


330  REPOET  OF   COMMITTEE  ON 

intent  on  the  part  of  the  United  States  in  regard  to  rights 
against  Germany.  If  Germany  had  taken  similar  action,  which 
it  did  not,  it  would  only  have  ended  the  state  of  war  as  far  as 
Germany  was  concerned,  supposing  that  there  had  been  an 
antecedent  declaration  or  act;  and  if  the  German  act  had  in- 
cluded the  same  enumeration  of  rights  claimed  by  the  "United 
States,  the  German  Government  could  have  repealed  the  ad 
and  claims  at  any  subsequent  date.  This  is  of  course  predicated 
on  the  supposition  that  Germany  was  a  frefe  agent,  which  it  was 
not,  for  its  assets  have  been  mortgaged  to  the  Allied  and^  Asso- 
ciated Powers  by  the  Treaty  of  Versailles,  and  any  action  of 
Germany  would  have  to  be  with  the  consent  of  these  Powers,  in 
so  far  as  it  was  inconsistent  with  this  treaty. 

This  was  apparent  to  the  present  president,  and  his  advisers, 
for  in  his  first  address  to  the  Congress  of  the  United  States,  in 
April  12, 1921,  he  said : 

To  establish  a  state  of  technical  peace  without  further  delay,  I  should 
approve  a  declaratory  resolution  of  Congress  to  that  effect,  with  the 
qualifications  essential  to  protect  all  our  rights. 

He  was,  however,  careful  to  add  that 

such  a  resolution  should  undertake  to  do  no  more  than  thus  declare  the 
state  of  peace  which  all  America  craves. 

That  is  to  say,  the  proposed  joint  resolution  should  repeal  the 
declaration  of  the  state  of  war  of  April  6,  1917,  and  contain  the 
rights  to  be  secured  from  Germany  by  negotiation. 

This  the  Congress  did  by  a  joint  resolution  terminating  the 
state  of  war  between  the  Imperial  German  Government  and  the 
United  States  of  America,  and  between  the  Imperial  and  Hoyal 
Austro-Hungarian  Governnjent  and  the  United  States  of  Amer- 
ica, approved  by  the  present  president  on  July  2,  1921. 

The  declaration  of  a  state  of  war  was  thus  repealed  and  the 
administration  was  free  to  secure  by  negotiation  the  rights 
enumerated  in  the  joint  resolution.  Here  a  difficulty  presented 
itself  because  Germany  could  not  grant  part  of  the  rights — all 
of  which  had  been  granted  to  the  Allied  and  Associated  Powers. 
A  little  reflection  showed  the  way  out.  The  framers  of  the 
Treaty  of  Versailles  were  familiar  with  this  view  as  the  repre- 
sentative of  the  United  States  in  the  committee  which  drafted 
the  Treaty  of  Versailles  had  repeatedly  stated  during  its  drafting 
to  the  representatives  of  the  other  Powers,  that  the  United 
States  would  under  the  treaty  take  its  share  of  all  the  privileges 
granted  by  Germany  to  the  principal  Allied  and  Associated 
Powers,  of  which  the  United  States  was  specified  as  one  in  the 
preamble  of  the  treaty,  without  ratifying  it;  that  the  United 
States  would  not  be  bound  by  any  of  the  duties  or  obligations 


INTJBRNATIONAIi  LAW.  331 

of  the  treaty  without  assuming  them  by  ratification  of  the  treaty, 
just  as  the  President  of  the  United  States  cTould  call  the  meeting 
of  the  League  of  Nations  as  he  was  authorized  to  do  by  the 
Covenant,  without  the  ratification  of  that  instrument  by  the 
United  States,  and  just  as  Gustave  Ador  of  Switzerland  could 
act  as  arbitrator  in  certain  cases  specified  in  the  treaty,  although 
Switzerland  was  not  and  Gustave  Ador  as  a  citizen  of  that 
country  could  not  be  a  party  to  the  treaty. 

Upon  this  theory  the  administration  claimed  grants  of  ad- 
vantage to  the  United  States  and  its  citizens,  eliminating  grants 
which  it  did  not  care  to  receive,  and  rejected  the  duties  and 
obligations  which  the  administration  did  not  care  to  assume. 

The  first  were  looked  upon  as  grants  from  Germany  to  the 
United  States  as  an  Associated  Power  made  by  Germany  under 
pressure  of  the  Allied  and  Associated  Powers,  of  which  the 
United  States  was  one.  They  were  gifts  that  only  needed  to 
be  claimed.  The  duties  or  obligations  specifically  enumerated 
in  the  treaty  could  only  become  effective  by  action  of  the  United 
States,  as  the  United  States  alone  could  bind  itself  to  take  a 
particular  course  of  action.  Naturally  the  United  States,  as  one 
of  the  Allied  and  Associated  Powers  could  only  take  the  grants 
in  the  form  in  which  they  were  granted  to  the  principal  Allied 
and  Associated  Powers,  as  they  were  one  and  the  same  to  each. 
The  same  is  to  be  said  of  the  treaty  of  St.  Germain-en -Lay  e  of 
September  10,  1919,  with  Austria,  and  the  treaty  of  the  Trianon, 
with  Hungary,  signed  on  June  4,  1920.  Therefore,  the  treaty  of 
August  25  1921,  between  the  United  States  and  Germany,  the 
treaty  of  August  24, 1921,  with  Austria,  and  the  treaty  of  August 
29, 1921,  with  Hungary,  included  the  statement  of  rights  claimed 
by  the  United  States  in  the  joint  resolution  of  July  2,  1921, 
which  were  specifically  accepted  by  each  of  the  three  contracting 
powers;  the  portions  of  the  treaties  of  Versailles,  St.  Germain 
and  the  Trianon,  of  which  the  United  States  accepted  the 
benefits ;  a  statement  that  the  United  States  received  these  rights 
as  they  were  granted  to  the  Allied  and  Associated  Powers ;  a  non- 
acceptance  of  parts  of  the  treaties,  and  a  repudiation  of  the 
duties  and  obligations  contained  in  the  portions  of  the  treaties 
^  which  the  administration  expressly  repudiated.  Only  the  parts 
*  of  the  Treaty  of  Versailles  which  were  accepted  by  the  United 
States  in  its  Treaty  with  Germany  need  be  set  forth  as  those  of 
the  treaties  with  Austria  and  Hungary  are  similar : 

Germany  undertakes  to  accord  to  the  United  States,  and  the  United 
States  shall  have  and  enjoy,  all  the  rights,  privileges,  inaemnities,  repara- 
tions or  advantages  specified  in  the  aforesaid  Joint  Resolution  of  the 
Congress  of  the  United  States  of  July  2,  1921,  including  all  the  rights 
and  advantages  stipulated  for  the  benefit  of  the  United  States  in  the 
Treaty  of  Versailles  which  the  United  States  dbaU  fully  enjoy  notwith- 


332  REPORT  OF   COMMITTBB  ON 

Standing  the  fact  that  such  Treaty  has  not  been  ratified  by  the  United 
States.    [Artide  I.] 

With  a  view  to  defining  more  particularly  the  obligations  of  Germany 
under  the  foregoing  Article  with  respect  to  certain  provisions  in  the 
Treaty  of  Versailles,  it  is  understood  and  agreed  between  the  High 
Contracting  Parties; 

(1)  That  the  rights  and  advantages  stipulated  in  that  Treaty  for  the 
benefit  of  the  United  States,  which  it  is  intended  the  United  States  shall 
have  and  enjoy,  are  those  defined  in  Section  1,  of  Part  IV,  and  Parts  V, 
VI,  Vm,  IX,  X,  XI,  XII,  XIV,  and  XV. 

The  United  States  in  availing  itself  of  the  rights  and  advantages 
stipulated  in  the  provisions  of  that  Treaty  mentioned  in  this  paragraph 
will  do  so  in  a  manner  consistent  with  the  rights  accorded  to  Germany 
imder  such  provisions. 

(2)  That  the  United  States  shall  not  be  bound  by  the  provisions  of 
Part  I  of  that  Treaty,  nor  bv  anv  provisions  of  that  Treaty  including 
those  mentioned  in  paragraph  (1)  of  this  Article,  which  relate  to  the 
Covenant  of  the  League  of  Nations,  nor  shaU  the  United  States  be 
bound  by  any  action  taken  by  the  League  of  Nations,  or  bv  the  Council 
or  by  the  Assembly  thereof,  unless  the  United  States  shall  expressly 
give  its  assent  to  such  action. 

(3)  That  the  United  States  assumes  no  obligations  under  or  with 
respect  to  the  provisions  of  Part  11,  Part  III,  Sections  2  to  8  inclusive 
of  Part  IV,  and  Part  XIII  of  that  Treaty. 

(4)  That,  while  the  United  States  is  privileged  to  participate  in  the 
Reparation  Commission,  according  to  tfie  terms  of  Part  VIII  of  that 
Treaty,  and  in  any  other  Commission  established  under  the  Treaty  or 
under  any  a^eement  supplemental  thereto,  the  United  States